ALSERES PHARMACEUTICALS, INC.
SECOND AMENDED AND RESTATED
1990 NON-EMPLOYEE DIRECTORS’ NON-QUALIFIED STOCK OPTION
PLAN
The objectives of
the Alseres Pharmaceuticals, Inc. Second Amended and Restated 1990
Non-Employee Directors’ Non-Qualified Stock Option Plan (as
amended from time to time, the “Plan”) are to assist
Alseres Pharmaceuticals, Inc. (the “Company”) in
attracting and retaining experienced and knowledgeable independent
Directors, to further promote the identification of such
Directors’ interests with those of the Company’s
stockholders, and to attract and retain experienced and
knowledgeable employees, independent contractors and consultants.
The Alseres Pharmaceuticals, Inc. Second Amended and Restated 1990
Non-Employee Directors’ Non-Qualified Stock Option Plan is
hereby amended and restated.
2. Maximum
Number of Shares to be Optioned and Adjustments in Optioned
Shares.
The maximum number
of shares of common stock, par value $.01 per share (the
“Common Stock”), of the Company which may be issued
hereunder is 1,400,000 (the “Shares”).
In the event of
any dividend or other distribution (whether in the form of cash,
Common Stock, or other property), recapitalization, stock split,
reverse split, reorganization, merger, consolidation, spin-off,
combination, repurchase, or share exchange, or other similar
corporate transaction or event, then the Board of Directors of the
Company (the “Board”) shall make equitable adjustments
in the manner determined by the Board to any or all of (i) the
number and kind of shares of Common Stock which may thereafter be
issued in connection with options, (ii) the number and kind of
shares of Common Stock issuable in respect of outstanding options,
and (iii) the exercise price relating to any
option.
3.
Administration and Interpretation.
The Plan shall be
administered by a committee (the “Committee”) appointed
by the Board. Subject to the express provisions of the Plan, the
Committee may make such rules and establish such procedures as it
deems appropriate for the administration of the Plan. In the event
of any disagreement as to the interpretation of the Plan or any
rule or procedure thereunder, the decision of the Committee shall
be final and binding upon all persons in interest.
4. Annual
Grant of Options.
Each member (a
“Director”) of the Board who is not an employee of the
Company and who has not been an employee of the Company for a
period of at least one year prior to the date of grant of an option
under the Plan (a “Non-Employee Director”) shall
automatically be granted an option on the thirteenth trading day
after the date of the annual meeting of stockholders of the Company
(“Retainer Grant Date”) to purchase such number of
Shares equal to the lesser of (a) 2,500 Shares and
(b) the quotient of the annual retainer for service as a
Non-Employee Director of the Company and 80% of the average of the
fair market value of a Share of Common Stock on the ten trading
days following the third trading day after the date of such annual
meeting of stockholders of the Company (such average a “Ten
Day Average-Value”). If the number of Shares calculated
pursuant to clause (b) of the immediately preceding sentence
exceeds 2,500, each Non-Employee Director entitled to receive
Shares under this paragraph of Section 4 will automatically
receive on the Retainer Grant Date a cash payment equal to the
annual retainer minus the product of 2,500 and 80% of the Ten Day
Average Value. The “fair market value” of Shares shall
be determined to be the closing price per Share on the principal
national securities exchange on which the Share is listed or
admitted to trading, or, if not listed or traded on any such
exchange, on the Nasdaq National Market, or if not listed or traded
on any such exchange or system, the average of the bid and asked
price per Share on Nasdaq or, if such quotations are not available,
the fair market value of a Share as determined in good faith by the
Committee, which determination shall be conclusive.
Each person who is
newly elected or appointed a Non-Employee Director after the
Company’s annual meeting of stockholders held in 1995, but
not by election at a subsequent Company annual meeting of
stockholders, shall automatically, on the thirteenth trading day
after the date of such election or appointment (the “Mid-Year
Grant Date”), be granted options to purchase such number of
Shares equal to the lesser of (a) 2,500 Shares and
(b) the quotient of (i) the product of (x) the
annual retainer for service as a Director of the Company and
(y) a fraction (the “Fraction”), the numerator of
which is the number of whole months from the date of such election
or appointment as a Non-Employee Director until the date of the
next annual meeting of stockholders and the denominator of which is
12 (such product hereinafter known as the “Mid-Year Retainer
Amount”) and (ii) 80% of the average of the fair market
value of a Share on the ten trading days following the third
trading day after the date of such election or appointment (such
average a “Mid-Year Ten Day Average Value”). If the
number of Shares calculated pursuant to clause (b) of the
immediately preceding sentence exceeds 2,500, each Non-Employee
Director entitled to receive Shares under this paragraph of
Section 4 will automatically receive on
the Mid-Year
Grant Date a cash payment equal to the Mid Year Retainer Amount
minus the product of 2,500 and 80% of the Mid Year Ten Day Average
Value.
5. Grants to
New Non-Employee Directors.
Each Non-Employee
Director who, after the Company’s annual meeting of
stockholders held in 1994, is elected or appointed to the Board for
the first time, and who was not immediately prior to such date
serving on the Board of Directors of Alseres Pharmaceuticals, Inc.,
will, at the time such director is elected or appointed and duly
qualified, be granted automatically (the “Automatic Grant
Date”) an option to purchase 7,500 Shares.
6. Grants to
Employees, Consultants, and Independent Contractors.
The Board may, in
its discretion grant stock options under the Director Plan to any
employee, independent contractor or consultant of the Company
(each, an “Employee”) or to any Non-Employee Director,
and such options will have the terms and conditions set by the
Board at the time the option is granted.
Subject to the
limitations prescribed in Sections 4 and 5 above, the options
granted under the Plan shall be on the terms stated in subsections
7(a) through (g) below.
(a) The option
exercise price per-share for options granted pursuant to
Section 4 of this Plan shall be 20% of the Ten Day Average
Value or Mid-Year Ten Day Average Value per Share, as appropriate.
The option exercise price per share for options granted pursuant to
Section 5 of this Plan shall be 100% of the fair market value
of a share of Common Stock on the Automatic Grant Date.
(b) Subject to the
provisions herein regarding expiration or termination of options,
an option granted pursuant to Section 4 of the Plan shall
become exercisable as to 75% of the Shares subject thereto six
months after the Retainer Grant Date or Mid-Year Grant Date of the
option, as appropriate, and shall become exercisable as to 100% of
the Shares subject thereto on the later of six months after the
Retainer Grant Date or Mid-Year Grant Date, as appropriate, and
December 31 of the year in which the option is granted.
Subject to the provisions herein regarding expiration or
termination of options, an option granted pursuant to
Section 5 of the Plan shall be exercisable as to 20% of the
Shares subject thereto on the Automatic Grant Date of the option,
and shall become exercisable as to an additional 20% of the Shares
subject thereto each of the first, second, third and fourth
anniversaries of such Automatic Grant Date. No partial exercise of
the option may be for less than 10 full Shares, unless the number
of shares so purchased constitutes the total number of shares then
purchasable under such option. In no event shall the Company be
required to issue fractional Shares.
(c)
Notwithstanding any other provisions of the Plan to the contrary,
no option shall be granted later than ten years after the date the
Plan is adopted by the Board.
(d) The option
price shall be payable in cash, services rendered, personal
property (including Shares having a fair market value equal to the
option price), real property, leases of real property or any
combination thereof.
(e) The option
shall not be transferable otherwise than by will or the laws of
descent and distribution and shall be exercisable, during the
optionee’s lifetime, only by such optionee or the optionees
Representative (as hereinafter defined).
(f) The option
shall expire ten years after the date of grant, unless an earlier
date is fixed by operation of Section 7 hereof.
Notwithstanding
any other provision of the Plan to the contrary, if, while any
options remain outstanding under the Plan, a “Change in
Control” of the Company (as defined in this
Section 7(g)) shall occur, all options granted under the Plan
that are outstanding at the time of such Change in Control shall
become immediately exercisable in full, without regard to the years
that have elapsed from the date of grant.
For purposes of
this Section 7(g), a Change in Co
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