EXHIBIT 10.5
DATE OF GRANT: [___]
NONQUALIFIED STOCK OPTION
Granted by
NOVELOS THERAPEUTICS, INC.
to
[ ]
---
(the "Holder")
For valuable consideration, the receipt of which is hereby
acknowledged, Novelos Therapeutics, Inc., a Delaware corporation (hereinafter
together with its subsidiaries, where the context permits, referred to as the
"Company"), hereby grants to the Holder the following option:
Section 1. GRANT OF OPTION. Subject to the terms and conditions
hereinafter set forth, the Holder is hereby given the right and option to
purchase from the Company shares of the Company's common stock, $.00001 par
value per share (the "Common Stock"). Schedule A attached hereto and hereby
incorporated herein sets forth, with respect to this option, (i) its expiration
date, (ii) its exercise price per share, (iii) the maximum number of shares that
the Holder may purchase upon exercise hereof, and (iv) the vesting schedule. It
also sets forth applicable conditions that the Company incorporates herein. This
option shall terminate in all respects, and all rights and options to purchase
shares hereunder shall terminate, ten years from the Date of Grant set forth
above. The right to purchase shares hereunder shall be cumulative.
Section 2. EXERCISE OF OPTION. Each option hereunder may be exercised
only to the extent such option has vested pursuant to the terms of Section 1.
Purchase of any shares hereunder shall be made by delivery to the Company of a
written notice of exercise specifying the number of shares with respect to which
the option is to be exercised and the address to which the certificate
representing such shares is to be mailed, accompanied by either (a) cash,
certified or bank check or postal money order payable to the order of the
Company for an amount equal to the option price of such shares, (b) shares of
Common Stock of the Company having a fair market value equal to or less than the
option price of such shares accompanied by cash or a certified or bank check or
postal money order in an amount equal to the difference, if any, between the
option price of such shares and the fair market value of such shares, (c) if
authorized by the Company's Board of Directors (the "Board"), by a promissory
note of the Holder (except that the aggregate par value of the shares shall be
paid in cash), or (d) if authorized by the Board, any combination of the
foregoing. For the purpose of the preceding sentence, the fair market value of
the shares of Common Stock so delivered to the Company shall be determined in
accordance with procedures adopted by the Board or, if appointed, a committee of
the Board authorized to administer Company options (the "Committee").
Section 3. CONDITIONS AND LIMITATIONS. As a condition precedent to any
exercise of this option, the Holder (or if any other individual or individuals
are exercising this option, such individual or individuals) shall deliver to the
Company an investment letter in form and substance satisfactory to the Company
and its counsel which shall contain among other things a statement in writing to
the following effects (to the extent then applicable): (a) that the option is
then being exercised for the account of the Holder and only with a view to
investment in, and not for, in connection with or with a view to the disposition
of, the shares with respect to which the option is then being exercised; (b)
that the Holder acknowledges that the right of first refusal set forth in
Section 9 hereof applies to such shares; (c) that the Holder and Xxxxxx's
representatives have fully investigated the Company and the business and
financial conditions concerning it and have knowledge of the Company's then
current corporate activities and financial condition; and (d) that the Holder
believes that the nature and amount of the shares being purchased are consistent
with Xxxxxx's investment objectives, abilities and resources. The restrictions
imposed by this Section and any investment representation made pursuant to this
Section shall be inoperative upon the registration with the Commission of the
stock subject to this option or acquired through the exercise of this option.
The Holder also agrees for a period of 90 days from the effective date
of underwritten public offerings of Common Stock of the Company under the
Securities Act of 1933, as amended (the "Securities Act"), upon request of the
underwriters managing any underwritten offering of the Company's securities, not
to sell, make any short sale of, loan, grant any option for the purchase of, or
otherwise dispose of any shares issued pursuant to the exercise of this option,
without the prior written consent of the Company and such underwriters.
Section 4. DELIVERY OF SHARES. Within a reasonable time following the
receipt by the Company of the written notice and payment of the option price for
the shares to be purchased thereunder and, if applicable, the investment letter
referred to in Section 3, the Company will deliver or cause to be delivered to
the Holder (or if any other individual or individuals are exercising this
option, to such individual or individuals) at the address specified pursuant to
Section 2 hereof a certificate or certificates for the number of shares with
respect to which the option is then being exercised, registered in the name of
the Holder (or the name or names of the individual or individuals exercising the
option, either alone or jointly with another person or persons with rights of
survivorship, as the individual or individuals exercising the option shall
prescribe in writing to the Company); provided, however, that such delivery
shall be deemed effected for all purposes when a stock transfer agent shall have
deposited such certificate or certificates in the United States mail, addressed
to the Holder (or such individual or individuals) at the address so specified;
and provided further that if any law, regulation or order of the Commission or
other body having jurisdiction in the premises shall require the Company or the
Holder (or the individual or individuals exercising this option) to take any
action in connection with the sale of the shares then being purchased, then,
subject to the other provisions of this paragraph, the date on which such sale
shall be deemed to have occurred and the date for the delivery of the
certificates for such shares shall be extended for the period necessary to take
and complete such action, it being understood that the Company shall have no
obligation to take and complete any such action.
Section 5. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. The existence of
this option shall not affect in any way the right or power of the Company or its
stockholders to make or
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authorize any or all adjustments, recapitalizations, reorganizations or other
changes in the Company's capital structure or its business, or any merger or
consolidation of the Company, or any issue of bonds, debentures, preferred or
prior preference stock ahead of or affecting the Common Stock or the rights
thereof, or the dissolution or liquidation of the Company, or any sale or
transfer of all or any part of its assets or business, or any other corporate
act or proceeding, whether of a similar character or otherwise.
If the Company shall effect a subdivision or consolidation of shares or
other capital readjustment, the payment of a stock dividend, or other increase
or reduction of the number of shares of the Common Stock outstanding, without
receiving compensation therefor in money, services or property, then the number,
class, and per share price of shares of stock subject to this option shall be
appropriately adjusted in such a manner as to entitle the Holder to receive upon
exercise of this option, for the same aggregate cash consideration, the same
total number and class of shares that the owner of an equal number of
outstanding shares of Common Stock would own as a result of the event requiring
the adjustment.
Except as hereinbefore expressly provided, the issue by the Company of
shares of stock of any class, or securities convertible into shares of stock of
any class, for cash or property, or for labor or services, either upon direct
sale or upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into such shares
or other securities, shall not affect, and no adjustment by reason thereof shall
be made with respect to, the number or price of shares of Common Stock then
subject to this option.
Section 6. EFFECT OF CERTAIN TRANSACTIONS. If the Company is a party to
a merger or reorganization with one or more other corporations, whether or not
the Company is the surviving or resulting corporation, or if the Company
consolidates with or into one or more other corporations, or if the Company is
liquidated or sells or otherwise disposes of substantially all its assets to
another corporation (each hereinafter referred to as a "Transaction"), in any
case while this option remains outstanding: after the effective date of such
Transaction this option shall remain outstanding and shall be exercisable in
shares of Common Stock or, if applicable, shares of such stock or other
securities, cash or property as the holders of shares of Common Stock received
pursuant to the terms of such Transaction.
Section 7. RIGHTS OF HOLDER. No person shall, by virtue of the granting
of this option to the Holder, be deemed to be a holder of any shares purchasable
under this option or to be entitled to the rights or privileges of a holder of
such shares unless and until this option has been exercised with respect to such
shares and they have been issued pursuant to that exercise of this option.
The granting of this option shall not impose upon the Company any
obligations to employ or to continue to employ the Holder or, if applicable, to
continue the Holder as a director of the Company; and the right of the Company
to terminate the employment of the Holder shall not be diminished or affected by
reason of the fact that this option has been granted to the Holder.
Nothing herein contained shall impose any obligation upon the Holder to
exercise this option.
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At all times while any portion of this option is outstanding, the
Company shall: (i) reserve and keep available, out of shares of its authorized
and unissued stock or reacquired shares, a sufficient number of shares of its
Common Stock to satisfy the requirements of this option; (ii) comply with the
terms of this option promptly upon exercise of the option rights; and (iii) pay
all fees or expenses necessarily incurred by the Company in connection with the
issuance and delivery of shares pursuant to the exercise of this option.
Section 8. TRANSFER AND TERMINATION. This option is not transferable by
the Holder otherwise than by will or the laws of descent and distribution,
unless approved by the Company in writing.
In the event the Holder's employment, directorship or consultancy is terminated
by the Company for Cause (as defined below), the Participant's right to exercise
any unexercised portion of the Option shall cease immediately as of the date of
termination, and the Option shall thereupon terminate. For purposes of this
Agreement, the term Cause means (i) the conviction of the Holder of any felony
involving moral turpitude, (ii) any acts of fraud or embezzlement by the Holder
involving the Company or any of its Affiliates, 2 (iii) violation of any
federal, state or local law, or administrative regulation related to the
business of the Company, (iv) breach of fiduciary duty, including, but not
limited to, conflict of interest, (v) conduct that could result in publicity
reflecting unfavorably on the Company in a material way, or (vi) failure to
comply with any written policies of the Company. Notwithstanding anything herein
to the contrary, if subsequent to the Participant's termination, but prior to
the exercise of the Option, the Board of Directors of the Company determines
that, either prior or subsequent to the Holder's termination, the Holder engaged
in conduct which would constitute Cause, then the Holder shall immediately cease
to have any right to exercise the Option and the Option shall thereupon
terminate.
Section 9. RIGHT OF FIRST REFUSAL; LEGENDS.
(a) In the event that, at any time when the Holder (which term for
purposes of this Section 9 shall mean the Holder and his executors,
administrators and any other person to whom this option may be transferred by
will or the laws of descent and distribution) is permitted to do so, the Holder
desires to sell, assign or otherwise transfer any of the shares issued upon the
exercise of this option, the Holder shall first offer such shares to the Company
by giving written notice of the Holder's desire so to sell, assign or transfer
such shares. The notice shall state the number of shares offered, the name of
the person or persons to whom it is proposed to sell, assign or transfer such
shares and the price at which such shares are intended to be sold, assigned or
transferred. Such notice shall constitute an offer to the Company for the
Company to purchase the number of shares set forth in the notice at a price per
share equal to the price stated therein. The Company may accept the offer as to
all, but not less than all, such shares by notifying the Holder in writing
within 30 days after receipt of such notice of its acceptance of the offer. If
the offer is accepted, the Company shall have 15 days within which to purchase
the offered shares at a price per share as aforesaid. If within the applicable
time periods the Holder does not receive notice of the Company's intention to
purchase the offered shares, or if payment in full of the purchase price is not
made by the Company, the offer shall be deemed to have been rejected and the
Holder may transfer title to such shares within 90 days from the date of the
Holder's written notice to the Company of the Holder's intention to sell, but
such transfer shall be made only to the proposed transferee and at the proposed
price as stated in such notice and
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after compliance with any other provisions of this option applicable to the
transfer of such shares. Shares that are so transferred to such transferee shall
remain subject to the rights of the Company set forth in this Section 9. No
sale, assignment, pledge or transfer of any of the shares covered by this option
shall be effective or given effect on the books of the Company unless all of the
applicable provisions of this Section 9 have been duly complied with, and the
Company may inscribe on the face of any certificate representing any of such
shares a legend referring to the provisions of this Section. If any transfer of
shares is made or attempted in violation of the foregoing restrictions, or if
shares are not offered to the Company as required hereby, the Company shall have
the right to purchase such shares from the owner thereof or his transferee at
any time before or after the transfer, as herein provided. In addition to any
other legal or equitable remedies which it may have, the Company may enforce its
rights by actions for specific performance (to the extent permitted by law) and
may refuse to recognize any transferee as one of its stockholders for any
purpose, including, without limitation, for purposes of dividend and voting
rights, until all applicable provisions hereof have been complied with.
(b) For purposes of the Right of First Refusal pursuant to this Section
9, the term "shares" shall mean any and all new, substituted or additional
securities or other property issued to the Holder, by reason of his ownership of
Common Stock pursuant to the exercise of this option, in connection with any
stock dividend, liquidating dividend, stock split or other change in the
character or amount of any of the outstanding securities of the Company, or any
consolidation, merger or sale of all or substantially all of the assets of the
Company.
(c) Any certificate representing shares of stock subject to the
provisions of this Section 9 may have endorsed thereon one or more legends,
substantially as follows:
(i) "Any disposition of any interest in the securities
represented by this certificate is subject to restrictions,
and the securities represented by this certificate are
subject to certain options, contained in a certain agreement
between the record holder hereof and the Company, a copy of
which will be mailed to any holder of this certificate
without charge upon receipt by the Company of a written
request therefor."
(ii) "The shares of stock represented by this certificate have not
been registered under the Securities Act of 1933 or under the
securities laws of any state and may not be pledged,
hypothecated, sold or otherwise transferred except upon such
registration or upon receipt by the Company of an opinion of
counsel satisfactory to the Company, in form and substance
satisfactory to the Company, that such registration is not
required."
(d) The restrictions imposed by this Section 9 shall terminate in all
respects upon the effective date of a registration statement under the 1933 Act
covering the Common Stock.
Section 10. NOTICE. Any notice to be given to the Company hereunder
shall be deemed sufficient if addressed to the Company and delivered to the
office of the Company, Xxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000,
attention of the president, or such other address as the Company may hereafter
designate.
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Any notice to be given to the Holder hereunder shall be deemed
sufficient if addressed to and delivered in person to the Holder at his address
furnished to the Company or when deposited in the mail, postage prepaid,
addressed to the Holder at such address.
Section 11. GOVERNING LAW. This option shall be governed by and
construed in accordance with the laws of the State of Delaware.
Section 12. DATE OF GRANT. This option shall be effective on the Date
of Grant set forth on page 1 hereof.
IN WITNESS WHEREOF, the parties have executed this option, or caused
this option to be executed, as of the Date of Xxxxx.
Novelos Therapeutics, Inc.
By:
--------------------------
Acknowledged and accepted:
------------------------------
Holder
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SCHEDULE A
NOVELOS THERAPEUTICS, INC.
NON-QUALIFIED STOCK OPTION
1. Name of Holder:
2. Date of Grant:
3. Maximum Number of shares for which this Option is exercisable:
4. Exercise (purchase) price per share:
5. Expiration Date of Option:
6. Vesting Schedule:
7. All shares purchased upon exercise of this Option are subject to the
right of first refusal set forth in Section 9 of the Option, to the
lockup agreement set forth in Section 3 of the Option and the vFinance
financing lock-up agreement effective through November 27, 2006, and to
the other terms of the Option.
* * *
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