EXHIBIT 10.40:
Stock Option Agreement dated October 1, 2008 between Registrant and
Gere S. diZerega, MD.
SYNTHEMED, INC.
STOCK OPTION
AGREEMENT
(Non-Qualified Stock
Option)
AGREEMENT
entered into as of the date set forth on the signature page hereto
by and between SyntheMed, Inc., a Delaware corporation, with a
business address of 200 Middlesex Essex Turnpike, Iselin, New
Jersey (together with its subsidiaries, if any, the "Company"), and
the undersigned (the "Grantee").
WHEREAS, the
Company desires to grant to the Grantee a non-qualified stock
option to acquire shares of the Company's Common Stock, $.001 par
value (the "Shares"); and
WHEREAS, each
option is to be evidenced by an option agreement, setting forth the
terms and conditions of the option.
NOW THEREFORE,
in consideration of the premises and of the mutual covenants and
agreements contained herein, the Company and the Grantee hereby
agree as follows:
The Company
hereby grants to the Grantee a non-qualified stock option (the
"Option") to purchase all or any part of an aggregate of the number
of Shares set forth on the signature page to this Agreement on the
terms and conditions hereinafter set forth. The Option
shall NOT be treated as an incentive stock option under Section 422
of the Internal Revenue Code of 1986, as amended (the
"Code").
The purchase
price ("Purchase Price") for the Shares covered by the Option shall
be the dollar amount per share set forth on the signature page to
this Agreement.
3.
Time of Vesting and Exercise of Option .
Subject to
Section 4 hereof, the Option shall vest and become exercisable on
the dates and as to the installment amounts set forth on the
signature page to this Agreement. To the extent the
Option (or any portion thereof) is not exercised by the Grantee
when it becomes exercisable, it shall not expire, but shall be
carried forward and shall be exercisable, on a cumulative basis,
until the Expiration Date (as hereinafter defined) or until earlier
termination as hereinafter provided.
4.
Term; Extent of Exercisability .
The Option
shall expire as to each installment amount on the date set forth
next to each such amount on the signature page to this
Agreement (the "Expiration Date"), subject to earlier
termination as herein provided.
(a) Termination
Without Cause. In the event the Grantee’s
employment or service is terminated by the Company for any reason
other than “disability”, death or for
“cause” (collectively, a “Termination without
cause”), the Option shall become one hundred percent vested
and fully exercisable immediately, and shall terminate on the
earlier to occur of (i) the first anniversary of the date on which
the Grantee’s employment or service is terminated by the
Company, or second anniversary thereof in the case of such
termination during the first year of the Option’s term, and
(ii) the date of expiration of the Option term.
(b) Termination
For Cause. In the event the Grantee’s employment
or service is terminated by the Company for “cause”,
the Option shall terminate as of the date the Grantee’s
employment or service is terminated by the Company and the Grantee
shall automatically forfeit all shares underlying any exercised
portion of the Option for which the Company has not yet delivered
the share certificates, upon refund by the Company of the Exercise
Price paid by the Grantee for such shares.
(c) Termination
Due to Disability. In the event the Grantee’s
employment or service is terminated by the Company on account of
Grantee’s “disability”, the Option shall become
one hundred percent vested and fully exercisable by the Grantee
immediately, and shall terminate on the earlier to occur of the
first anniversary thereof or the date of expiration of the Option
term.
(d) Termination
Due to Death. In the event of the death of the Grantee,
the Option shall become one hundred percent vested and fully
exercisable by the Grantee immediately, and shall terminate on the
earlier to occur of the first anniversary thereof or six months
after the probate of the Grantee’s estate, but in any event
no later than the date of expiration of the Option term.
(e) Voluntary
Termination. In the event the Grantee terminates his or
her employment with or services to the Company at his or her own
volition, the Option shall, unless the Committee determines
otherwise, terminate on the expiration of six (6) months after the
date on which the Grantee’s employment with or service to the
Company is terminated, or one (1) year in the case of termination
of employment or services during the first year of the Option term,
but in no event later than the date of expiration of the Option
term. Any portion of the Option that is not exercisable
as of the date on which the Grantee’s employment with or
service to the Company is terminated shall terminate as of such
date unless the Committee determines otherwise.
(f) Termination
Without Cause Upon a Change of Control. Notwithstanding
the provisions of Section 4(a) above, if the Grantee’s
employment or service is terminated by the Company on account of a
“termination without cause” during the one year period
following a Change of Control, the Option shall become one hundred
percent vested and fully exercisable for the two year period after
the date on which the Grantee’s employment or service is
terminated by the Company, but in no event later than the date of
expiration of the Option term. As used herein, a
“Change of Control” shall be deemed to have occurred
if:
(i) Any
“person” (as such term is used in Sections 13(d) and
14(d) of the Exchange Act) is or becomes a “beneficial
owner” (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing
more than 35% of the voting power of the then outstanding
securities of the Company, and such person owns more aggregate
voting power of the Company's then outstanding securities entitled
to vote generally in the election of directors than any other
person;
(ii) The
shareholders of the Company approve (or, if shareholder approval is
not required, the Board approves) an agreement providing for (i)
the merger or consolidation of the Company with another corporation
where the shareholders of the Company, immediately prior to the
merger or consolidation, will not beneficially own, immediately
after the merger or consolidation, shares entitling such
shareholders to 50% or more of all votes to which all shareholders
of the surviving corporation would be entitled in the election of
directors (without consideration of the rights of any class of
stock to elect directors by a separate class vote), (ii) the sale
or other disposition of all or substantially all of the assets of
the Company, or (iii) a liquidation or dissolution of the Company;
or
(iii) After
the effective dat
