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Exhibit 6.4
STOCK OPTION AGREEMENT, made as of the 10th day
of June, 1999, by and between ADVANCED PLANT
PHARMACEUTICALS, INC., a Delaware corporation
(the "Company") having its principal place of
business at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
and ▇▇▇▇▇ ▇▇▇▇▇ ("Optionee") residing
at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
WHEREAS, on June 3, 1999 ("Grant Date"), the Board of Directors
authorized the grant to the Optionee of an option ("Option") to purchase an
aggregate of 750,000 shares of the authorized but unissued common stock of the
Company, $.0007 par value ("Common Stock"), conditioned upon the Optionee's
acceptance thereof upon the terms and conditions set forth in this Agreement;
and
WHEREAS, the Optionee desires to acquire the Option on the terms and
conditions set forth in this Agreement;
IT IS AGREED:
1. Grant of Stock Option. The Company hereby grants the Optionee the Option to
purchase all or any part of an aggregate of 750,000 shares of Common Stock
("Option Shares") on the terms and conditions set forth herein. The Option
represented hereby is not intended to be an Option which qualifies as an
"Incentive Stock Option" under Section 422 of the Internal Revenue Code of 1986,
as amended ("Code").
2.Exercise Price. The exercise price ("Exercise Price") of the Option shall be
$.02 (two cents) per share, subject to adjustment as hereinafter provided.
3. Exercisability.
3.1 This Option shall be exercisable by the Optionee in accordance with
the following number of shares of Common Stock commencing on the following
dates:
Number of Shares Date After Which Shares Can Be Purchased
---------------- ----------------------------------------
750,000 June 10, 1999
3.2 Expiration of Option. This Option shall not be exercisable after 5:00
p.m. E.S.T. on June 10, 2004.
4. Effect of Termination of Employment.
4.1. Termination Due to Death. If Optionee's employment by the Company
terminates by reason of death, the Option may be exercised by the legal
representative of the estate or by the legatee of the Optionee under the will of
the Optionee, for a period of three years from the date of such death or until
the expiration of the Exercise Period, whichever is shorter.
4.2. Termination Due to Disability. If Optionee's employment by the
Company terminates by reason of Disability, the Option may be exercised by the
Optionee for a period of three years from the date of such termination or until
the expiration of the Exercise Period, whichever period is shorter.
4.3. Other Termination. If Optionee's employment is terminated by the
Company or Optionee for any reason other than death or disability, the Option
may be exercised for a period of three years from termination of employment or
until
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the expiration of the Exercise Period, whichever is shorter.
5. Withholding Tax. Not later than the date as of which an amount first must be
included in the gross income of the Optionee for Federal income tax purposes
with respect to the Option, the Optionee shall pay to the Company, or make
arrangements satisfactory to the Board of Directors regarding the payment of,
any Federal, state and local taxes of any kind required by law to be withheld or
paid with respect to such amount ("Withholding Tax"). The obligations of the
Company pursuant to this Agreement shall be conditioned upon such payment or
arrangements with the Company and the Company shall, to the extent permitted by
law, have the right to deduct any Withholding Taxes from any payment of any kind
otherwise due to the Optionee from the Company.
6. Adjustments. In the event of any change in the number of outstanding shares
of Common Stock of the Company occurring as the result of a stock split, reverse
stock split or stock dividend on the Common Stock, after the Grant Date, the
Company shall proportionately adjust the number of Option Shares and the
Exercise Price of the Option. Any right to acquire a fractional Option Share
resulting from adjustments will be rounded to the nearest whole Option Share. If
the Company shall be the surviving corporation in any merger, combination or
consolidation, this Option shall pertain and apply to the Option Shares to which
the Optionee is entitled hereunder, without adjustment for issuance by the
Company of any securities. In the event of a change in the par value of the
shares of Common Stock which are subject to this Option, this Option will be
deemed to pertain to the shares resulting from any such change. To the extent
that the foregoing adjustments relate to Common Stock, the adjustments will be
made by the Board of Directors whose determination will be final, binding and
conclusive.
7. Method of Exercise.
7.1 Notice to the Company. The Option may be exercised in whole or in
part by written notice in the form attached hereto as Exhibit A directed to the
Company at its principal place of business accompanied by full payment as
hereinafter provided of the exercise price for the number of Option Shares
specified in the notice and of the Withholding Taxes, if any.
7.2 Delivery of Option Shares. The Company shall deliver a certificate
for the Option Shares to the Optionee as soon as practicable after payment
thereof.
7.3 Cash Payment. The Optionee shall make cash payments by wire transfer,
certified or bank check or personal check, in each case payable to the order of
the Company; the Company shall not be required to deliver certificates for
Option Shares until the Company has confirmed the receipt of good and available
funds in payment of the purchase price thereof. Once payment has been received,
the Corporation will promptly deliver the certificates for the Option Shares to
Optionee.
7.4 Cashless Payment. The Board of Directors, in its sole discretion, may
allow Optionee to use Common Stock of the Company owned by him to make any
required payments by delivery of stock certificates in negotiable form which are
effective to transfer good and valid title thereto to the Company, free of any
liens or encumbrances. Shares of Common Stock used for this purpose shall be
valued at its fair market value as determined by the Board of Directors in good
faith. Notwithstanding the foregoing, the Company shall have the right to reject
payment in the form of Common Stock if in the opinion of counsel for the
Company, (i) it could result in an event of "recapture" under Section 16(b) of
the Securities Exchange Act of 1934; (ii) such shares of Common Stock may not be
sold or transferred to the Company; or (iii) such transfer could create legal
difficulties for the Company.
8. Nonassignability. The Option shall not be assignable or transferable, except
by will or by the laws of descent and distribution in the event of the death of
the Optionee. No transfer of the Option by the Optionee by will or by the laws
of descent and distribution shall be effective to bind the Company unless the
Company shall have been furnished with written notice thereof and a copy of the
will and/or such other evidence as the Company may deem necessary to establish
the validity of the transfer and the acceptance by the transferee or transferees
of the terms and conditions of
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the Option.
9. Company Representations: The Company hereby represents and warrants to the
Optionee that:
9.1 the Company, by appropriate and all required action, is duly
authorized to enter into this Agreement and consummate all of the transactions
contemplated hereunder; and
9.2 the Option Shares, when issued and delivered by the Company to the
Optionee in accordance with the terms and conditions hereof, will be duly and
validly issued and fully paid and non-assessable.
10. Optionee Representations. The Optionee hereby represents and warrants to the
Company that:
10.1 he is acquiring the Option and shall acquire the Option Shares for
his own account and not with a view towards the distribution thereof;
10.2 he understands that he must bear the economic risk of the investment
in the Option Shares, which cannot be sold by him unless they are registered
under the Securities Act of 1933 ("1933 Act") or an exemption therefrom is
available thereunder and that the Company is under no obligation to register the
Option Shares for sale under the 1933 Act;
10.3 in his position with the Company, he has had both the opportunity to
ask questions and receive answers from the officers and directors of the Company
and all persons acting on its behalf concerning the terms and conditions of the
offer made hereunder and to obtain any additional information to the extent the
Company possesses or may possess such information;
10.4 he is aware that the Company shall place stop transfer orders with
its transfer agent against the transfer of the Option Shares in the absence of
registration under the 1933 Act or an exemption therefrom as provided herein;
and
10.5. the certificates evidencing the Option Shares shall bear the
following legends:
"The shares represented by this certificate have been acquired for investment
and have not been registered under the Securities Act of 1933. The shares may
not be sold, transferred, or offered for sale except pursuant to an effective
registration statement as to the securities under said 1933 Act and any
applicable state securities law or any opinion of counsel reasonable
satisfactory to APPI, that such registration is not required."
"The shares represented by this certificate have been acquired pursuant to a
Stock Option Agreement, dated as of June 10, 1999, a copy of which is on file
with the Company, and may not be transferred, pledged or disposed of except in
accordance with the terms and conditions thereof."
11. Restriction on Transfer of Option Shares.
11.1. Anything in this Agreement to the contrary notwithstanding,
Optionee hereby agrees that he shall not sell, transfer by any means or
otherwise dispose of the Option Shares acquired by him without registration
under the 1933 Act, or in the event that they are not so registered, unless (i)
an exemption from the 1933 Act registration requirements is available
thereunder, and (ii) the Optionee has furnished the Company with notice of such
proposed transfer and the Company's legal counsel, in its reasonable opinion,
shall deem such proposed transfer to be so exempt.
11.2. Anything in this Agreement to the contrary notwithstanding,
Optionee hereby agrees that he shall not sell, transfer by any means or
otherwise dispose of the Option Shares acquired by him (i) prior to six months
after the Grant Date and (ii) except in accordance with Company's policy, if
any, regarding the sale and disposition of securities owned by Optionee and/or
directors of the Company.
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12. Miscellaneous.
12.1. Notice. Any notice hereunder shall be delivered by hand or
registered or certified mail, return receipt requested, to a party at it address
set forth above with a copy to Feder, Kaszovitz, Isaacson, Weber, ▇▇▇▇▇ & Bass
LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, subject to the right of
either party to designate at any time hereafter, in writing, some other address.
12.2. Conflicts with Code. In the event of a conflict between the
provisions of the Code, the provisions of the Code shall in all respects be
controlling.
12.3. Optionee and Stockholder Rights. The Optionee shall not have any of
the rights of a stockholder with respect to the Option Shares until such shares
have been issued after the due exercise of the Option. Nothing contained in this
Agreement shall be deemed to confer upon Optionee any right to continued
employment with the Company or any subsidiary thereof, nor shall it interfere in
any way with the right of the Company to terminate Optionee in accordance with
the provisions regarding such termination set forth in Optionee's written
employment agreement with the Company, or if there exists no such agreement, to
terminate Optionee at will.
12.4. Waiver. The waiver by any party hereto of a breach of any provision
of this Agreement shall not operate or be construed as a waiver of any other or
subsequent breach.
12.5. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof. This Agreement
may not be amended except by writing executed by the Optionee and the Company.
12.6. Binding Effect; Successors. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and, to the extent not
prohibited herein, their respective heirs, successors, assigns and
representatives. Nothing in this Agreement, expressed or implied, is intended to
confer on any person other than the parties hereto and as provided above, their
respective heirs, successors, assigns and representatives any rights, remedies,
obligations or liabilities.
12.7. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York (without regard to choice of
law provisions).
12.8. Headings. The headings contained herein are for the sole purpose of
convenience of reference, and shall not in any way limit or affect the meaning
or interpretation of any of the terms or provisions of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the day
and year first above written.
ADVANCED PLANT PHARMACEUTICALS, INC.
Address: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
BY:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President
AGREED AND ACCEPTED
BY:
Optionee: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Address:
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EXHIBIT A
FORM OF NOTICE OF EXERCISE OF OPTION
To be executed by the Optionee to exercise the rights to purchase Common Stock
evidenced by the Option within
Advanced Plant Pharmaceuticals, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
In accordance with my Stock Option Agreement dated as of June 10, 1999 with
Advanced Plant Pharmaceuticals, Inc. (the "Company"), I hereby irrevocably elect
to exercise the right to purchase ______________ shares of the Company's common
stock, par value $.0007 per share ("Common Stock").
As payment for my shares, enclosed is (check and complete applicable box[es]):
[ ] a [personal check] [certified check] [bank check] payable to the order of
"Advanced Plant Pharmaceuticals, Inc." in the sum of $____________.
[ ] confirmation of wire transfer in the amount of $__________.
[ ] with the consent of the Company, a certificate for shares of the Company's
Common Stock, free and clear of any encumbrances, duly endorsed, having a fair
market value.
I hereby represent and warrant to, and agree with, the Company that:
- I have acquired the Option and shall acquire the Option Shares for my own
account, for investment, and not with a view towards the distribution thereof;
- I understand that I must bear the economic risk of the investment in the
Option Shares, which cannot be sold by me unless they are registered under the
Securities Act of 1933 ("1933 Act") or an exemption therefrom is available
thereunder and that the Company is under no obligation to register the Option
Shares for sale under the 1933 Act;
- I agree that I will not sell, transfer by any means or otherwise dispose of
the Option Shares acquired by me hereby except in accordance with Company's
policy, if any, regarding the sale and disposition of securities owned by
Optionee.
Kindly forward to me a certificate for such shares to be issued in the
name of the undersigned and be delivered to the undersigned at the address
stated below, and, if such number of shares shall not be all of the shares
purchasable hereunder, that a new Option of like tenor for the balance of the
remaining shares purchasable hereunder be delivered to the undersigned at the
address stated below:
Dated: _______________
Signed: __________________________
Address: __________________________