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Exhibit
10.1
AKESIS PHARMACEUTICALS,
INC.
STAND-ALONE STOCK OPTION
AGREEMENT
| I. |
NOTICE OF STOCK OPTION GRANT |
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| Name: Carl LeBel,
Ph.D. |
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| Address: |
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You have been granted a
Nonstatutory Stock Option to purchase Common Stock of the Company,
subject to the terms and conditions of this Agreement, as
follows:
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| Date of
Grant: |
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December 17, 2007 |
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| Vesting
Commencement Date: |
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December
17, 2007 |
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| Exercise
Price per Share: |
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$0.66 |
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| Total Number
of Shares Granted: |
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250,000 |
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| Total
Exercise Price: |
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$165,000.00 |
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| Term/Expiration Date: |
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December
17, 2017 |
Vesting Schedule
:
This Option will vest and may
be exercised, in whole or in part, in accordance with the following
schedule:
1/4th of the Shares subject
to the Option will vest on the first anniversary of the Vesting
Commencement Date, with the remaining 3/4ths of the Shares vesting
in equal installments each month following the Vesting Commencement
Date, so that the Option will be fully vested four (4) years
from the Vesting Commencement Date, subject to the Optionee
continuing to be a Service Provider on such dates.
Notwithstanding the
foregoing, 100% of the Shares subject to this Option will fully
vest and become exercisable upon a Change of Control. For purposes
herein, “ Change of Control ” means the
occurrence of any of the following events: (i) the
consummation of the sale or disposition by the Company of all or
substantially all of the Company’s assets; (ii) the
consummation of a merger or consolidation of the Company with any
other corporation, other than a merger or consolidation which would
result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving entity or its parent) at least fifty percent
(50%) of the total voting power represented by the voting
securities of the Company or such surviving entity or its parent
outstanding immediately after such merger or consolidation
(provided that the sale by the Company of its securities for the
purposes of raising additional funds shall not constitute
a
Change of Control hereunder); or
(iii) the consummation of the sale or disposition by the
Company for aggregate gross proceeds to the Company of no less than
$50,000,000 of (a) one of the two issued RX patents held by
the Company as of the date hereof, or (b) the pending RX
patent held by the Company as of the date hereof, as approved by
the Company’s board of directors.
Termination Period
:
Subject to the provisions of
Section 10(c) of the Agreement, this Option may be exercised
for three (3) months after Optionee ceases to be a Service
Provider in accordance with Section 7 of this Agreement. Upon
the death or Disability of the Optionee, this Option may be
exercised for one (1) year after the Optionee ceases to be a
Service Provider in accordance with Sections 8 and 9 of this
Agreement. In no event will this Option be exercised later than the
Term/Expiration Date provided above.
1. Definitions . As
used herein, the following definitions will apply:
(a) “ Agreement
” means this stock option agreement between the Company and
Optionee evidencing the terms and conditions of this
Option.
(b) “ Applicable
Laws ” means the requirements relating to the
administration of stock options under U.S. state corporate laws,
U.S. federal and state securities laws, the Code, any stock
exchange or quotation system on which the Common Stock is listed or
quoted and the applicable laws of any foreign country or
jurisdiction that may apply to this Option.
(c) “ Board
” means the Board of Directors of the Company or any
committee of the Board that has been designated by the Board to
administer this Agreement.
(d) “ Change of
Control ” means the occurrence of any of the following
events:
(1) any “person”
(as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended) becoming the
“beneficial owner” (as defined in Rule 13d-3 under
said Act), directly or indirectly, of securities of the Company
representing fifty percent (50%) or more of the total voting
power represented by the Company’s then outstanding voting
securities;
(2) the approval by the
stockholders of the Company of a plan of complete liquidation of
the Company or an agreement for the sale or disposition by the
Company of all or substantially all of the Company’s
assets;
(3) the approval by
stockholders of the Company of a merger or consolidation of the
Company with any other corporation, other than a merger or
consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) more than fifty
percent (50%) of the total voting power represented by the
voting securities of the Company or such surviving entity
outstanding immediately after such merger or
consolidation.
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(e) “ Code
” means the Internal Revenue Code of 1986, as
amended.
(f) “ Common
Stock ” means the common stock of the Company.
(g) “ Company
” means Akesis Pharmaceuticals, Inc., a Nevada
corporation.
(h) “ Consultant
” means any person, including an advisor, engaged by the
Company or a Parent or Subsidiary to render services to such
entity.
(i) “ Director
” means a member of the Board.
(j) “ Disability
” means total and permanent disability as defined in
Section 22(e)(3) of the Code.
(k) “ Employee
” means any person, including Officers and Directors,
employed by the Company or any Parent or Subsidiary of the Company.
An Employee will not cease to be such in the case of (i) any
leave of absence approved by the Company or (ii) transfers
between locations of the Company or between the Company, its
Parent, any Subsidiary, or any successor. Neither service as a
Director nor payment of a director’s fee by the Company will
be sufficient to constitute “employment” by the
Company.
(l) “ Exchange
Act ” means the Securities Exchange Act of 1934, as
amended.
(m) “ Fair Market
Value ” means, as of any date, the value of Common Stock
determined as follows:
(1) If the Common Stock is
listed on any established stock exchange or a national market
system, including without limitation the Nasdaq National Market or
The Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair
Market Value will be the closing sales price for such stock (or the
closing bid, if no sales were reported) as quoted on such exchange
or system on the day of determination, as reported in The Wall
Street Journal or such other source as the Administrator deems
reliable;
(2) If the Common Stock is
regularly quoted by a recognized securities dealer but selling
prices are not reported, its Fair Market Value will be the mean
between the high bid and low asked prices for the Common Stock on
the day of determination; or
(3) In the absence of an
established market for the Common Stock, the Fair Market Value
thereof will be determined in good faith by the Board.
(n) “ Nonstatutory
Stock Option ” means an Option not intended to qualify as
an incentive stock option within the meaning of Section 422 of
the Code and the regulations promulgated thereunder.
(o) “ Notice of
Grant ” means a written notice, in Part I of this
Agreement, evidencing certain terms and conditions of this Option
grant. The Notice of Grant is part of the Option
Agreement.
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(p) “ Officer
” means a person who is an officer of the Company within the
meaning of Section 16 of the Exchange Act and the rules and
regulations promulgated thereunder.
(q) “ Option
” means this stock option.
(r) “ Optioned
Stock ” means the Common Stock subject to this
Option.
(s) “ Optionee
” means the person named in the Notice of Stock Option Grant
or such person’s successor.
(t) “ Parent
” means a “parent corporation,” whether now or
hereafter existing, as defined in Section 424(e) of the
Code.
(u) “ Service
Provider ” means an Employee, Director or
Consultant.
(v) “ Share
” means a share of the Common Stock, as adjusted in
accordance with Section 11 of this Agreement.
(w) “ Subsidiary
” means a “subsidiary corporation”, whether now
or hereafter existing, as defined in Section 424(f) of the
Code.
2. Grant of Option .
The Board hereby grants to the Optionee named in the Notice of
Grant attached as Part I of this Agreement the Option to purchase
the number of Shares, as set forth in the Notice of Grant, at the
exercise price per share set forth in the Notice of Grant (the
“ Exercise Price ”), subject to the terms and
conditions of this Agreement.
3. Exercise of Option
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(a) Right to Exercise
. This Option is exercisable during its term in accordance with the
Vesting Schedule set out in the Notice of Grant and the applicable
provisions of this Agreement.
(b) Method of Exercise
. This Option is exercisable by delivery of an exercise notice, in
the form attached as Exhibit A (the “ Exercise
Notice ”), which will state the election to exercise the
Option, the number of Shares in respect of which the Option is
being exercised (the “ Exercised Shares ”), and
such other representations and agreements as may be required by the
Company. The Exercise Notice will be completed by the Optionee and
delivered to the Human Resources Specialist of the Company or such
other person as the Company may designate. The Exercise Notice will
be accompanied by payment of the aggregate Exercise
Price
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