AMENDMENT TO STOCK OPTION AGREEMENT
AMENDMENT
TO
This
Amendment to Stock Option Agreement (this
“Amendment”),
is
made and entered into as of June 13, 2008, by and between VioQuest
Pharmaceuticals, Inc., a Delaware corporation (the “Company”),
and
Xxxxxxx Xxxxxx (“Optionee”).
BACKGROUND
A. WHEREAS,
the Company and Optionee entered into that certain Stock Option Agreement,
dated
as of November 21, 2007 (the “Agreement”),
pursuant to which the Company granted Optionee options under its 2003 Stock
Option Plan (the “Plan”)
to
purchase up to an aggregate of 29,974 shares of the Company’s common stock,
$.001 par value per share (the “Common
Stock”),
at an
exercise price of $3.00 per share (as adjusted for a 1-for-10 reverse stock
split);
B. WHEREAS,
the parties hereto hereby agree to amend the exercise price of the option
subject to the Agreement as set forth in this Amendment; and
C. WHEREAS,
the parties hereto hereby agree to amend the Change of Control provisions
subject to the Agreement as set forth in this Amendment.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained
herein and certain other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby amend
the
Agreement as follows:
1. Amendment
of Exercise Price.
Notwithstanding anything to the contrary contained herein, from and after the
date hereof, the per share exercise price applicable to the Shares subject
to
the Option shall be $0.54, subject to adjustment as provided in the
Plan.
2. Amendment
Regarding Change of Control.
Notwithstanding anything to the contrary contained herein, the following is
hereby added to paragraph 3 of the Agreement:
Notwithstanding
the foregoing, upon the occurrence of a Change of Control (as defined below),
one-half of the currently unvested options under this Agreement shall
immediately vest if the Corporation’s Market Capitalization, as such term is
defined in the Employment Agreement, then exceeds $15 Million but is less than
$30 Million and all of the currently unvested Options shall immediately vest
if
the Corporation’s Market Capitalization then exceeds $30 Million. For purposes
of this Paragraph 3, a “Change
of Control”
means
(i) the acquisition, directly or indirectly, following the date hereof by any
person (as such term is defined in Section 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended), in one transaction or a series of related
transactions, of securities of the Company representing in excess of fifty
percent (50%) of the combined voting power of the Company’s then outstanding
securities if such person or his/her/its affiliate(s) do not own in excess
of
fifty percent (50%) of such voting power on the date of this Agreement,
provided, however, that a Change of Control shall not include any transaction
or
series of related transactions effected primarily for capital raising purposes;
or (ii) the disposition by the Company (whether direct or indirect, by sale
of
assets or stock, merger, consolidation or otherwise) of all or substantially
all
of its business and/or assets in one transaction or series of related
transactions (other than a merger effected exclusively for the purpose of
changing the domicile of the Company), provided, however, that a Change of
Control shall not include any merger, consolidation or other transaction (or
series of related transactions) in which, following such transaction, the
stockholders of the Company immediately prior to such transaction continue
to
own in excess of fifty percent (50%) of the combined voting power of the
surviving or resulting entity.
3. Miscellaneous.
(a) Entire
Agreement.
This
Amendment, the Agreement and the Plan embody the entire agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. This Amendment supersedes all prior agreements and the understandings
between the parties with respect to the subject matter contained
herein.
(b) Defined
Terms.
Except
as otherwise expressly provided, or unless the context otherwise requires,
all
capitalized terms used herein have the meanings ascribed to them in the
Agreement.
(c) Counterparts.
This
Amendment may be executed in any number of counterparts, each of which shall
be
deemed an original, but all of which shall constitute but one and the same
document.
(d) Ratification
and Reaffirmation of Agreement.
Except
as expressly set forth herein, this Amendment shall not by implication or
otherwise alter, modify, amend or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained in the Agreement,
all
of which are ratified and affirmed in all respects and shall continue in full
force and effect.
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
|
By:
|
|
|
Xxxxx
Xxxx
|
|
|
Its:
Chief Financial Officer
|
|
|
Optionee:
|
|
2
