EXHIBIT 10.03D
GUILFORD PHARMACEUTICALS INC.
DIRECTORS' STOCK OPTION PLAN
STOCK OPTION AGREEMENT
This Share Option Agreement (the "Share Option Agreement") is made as of
the ____ day of ______________, by and between Guilford Pharmaceuticals Inc.
(the "Corporation") and __________, a non-employee of the Corporation or its
subsidiaries (the "Optionee").
WHEREAS, the Board of Directors of the Corporation (the "Board") and the
stockholders of the Corporation have duly adopted and approved the Directors'
Stock Option Plan (the "Plan") provides for the grant to non-employee directors
of a specified number of options for the purchase of shares of common stock of
the Corporation, $.01 par value (the "Stock"); and
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereto do hereby agree as follows:
1. GRANT OF OPTION.
Subject to the terms of the Plan (attached hereto as Exhibit A, the terms
of which are incorporated by reference herein), the Corporation hereby grants to
the Optionee the right and option (the "Option") to purchase from the
Corporation, on the terms and subject to the conditions hereinafter set forth,
____________ shares of Stock. This Option shall not constitute an incentive
stock option within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended (the "Code").
2. PRICE.
The purchase price (the "Option Price") for the Stock subject to the Option
granted by this Option Agreement is $ __________ per Share (the fair market
value of the Stock).
3. EXERCISE OF OPTION.
Except as otherwise provided herein, the Option granted pursuant to this
Option Agreement shall be subject to exercise as follows:
3.1 TIME OF EXERCISE OF OPTION.
Fifty percent of the Option shall become exercisable on each of the first
two anniversaries of the Grant Date (but shall not be exercisable before
approval of the Plan by shareholder). The foregoing installments, to the extent
not exercised, shall accumulate and be exercisable, in whole or in part, at any
time and from time to time, after becoming exercisable and prior to the
termination of the Option; provided, that no single exercise of the Option shall
be for less than 100 Shares, unless the number of Shares purchased is the total
number at the time available for purchase under this Option.
3.2 EXERCISE BY OPTIONEE.
During the lifetime of the Optionee, only the Optionee (or, in the event of
the Optionee's legal incapacity or incompetency, the Optionee's guardian or
legal representative) may exercise the Option.
3.3 TERMINATION OF OPTION.
The Option shall terminate ten (10) years after the date of grant of the
Option, as set forth in Section 13 below unless previously terminated following
the Optionee ceasing to be a member of the Board. If the Optionee ceases to be a
member of the Board, any unexercised or partially exercised Option held by the
Optionee shall terminate in accordance with the following provisions:
(i) If termination of Board Service is for any reason other than a
termination due to (a) retirement from the Board upon reaching the age set by
the Board for the retirement of Directors; (b) failure to stand for election to
the board with the Board's consent; (c) resignation from the board with the
Board's consent; or (d) death; or
(ii) If the termination of Board service is for reasons "a" through "c"
enumerated above, the Option shall become fully exercisable and shall continue
in force for the duration of its term, subject to the following regarding the
Optionee's death; or
(iii) If termination of Board service is due to Optionee's death, or in the
event of a former Director's death following a termination of Board service for
reasons "a" through "c" enumerated above, the Option shall become fully
exercisable and shall continue in force for one year following the date of
death.
3.4 LIMITATIONS ON EXERCISE OF OPTION.
Notwithstanding the foregoing Subsections of this Section, in no event may
the Option be exercised, in whole or in part, after the earliest of (i) ten (10)
years following the date upon which the Option is granted, as set forth in
Section 13 below, (ii) termination of the Option following termination of
service as a Director, as set forth in Section 3.3. above, or (iii) the
occurrence of an event referred to in Section 7 below which results in
termination of the Option. In no event may the Option be exercised for a
fractional Share.
3.4 REDUCTION IN NUMBER OF SHARES SUBJECT TO OPTION.
The number of shares which may be purchased upon exercise of the Option
pursuant to this Section shall be reduced by the number of shares previously
purchased upon exercise of the Option pursuant to this Section.
4. METHOD OF EXERCISE OF OPTION.
Subject to the terms and conditions of this Share Option Agreement, the
Optionee may, at any time, exercise an Option with respect to all or any part of
the shares of Stock then subject to such Option by giving the Corporation
written notice of exercise, specifying the number of Shares for which the Option
is being exercised. Such notice shall be addressed to the Administrator at the
Corporation's principal office, and shall be effective when actually received
(by personal delivery, fax or other delivery) by the Administrator. Such notice
shall be accompanied by an amount equal to the Exercise Price of such shares in
the form of any one or combination of the following: (i) in cash or in cash
equivalents; (ii) shares of Stock valued at Fair Market Value in accordance with
the Plan, (iii) by the delivery of a promissory note of the person exercising
the Option to the Corporation bearing interest at one (1) percent above the
average interest rate paid by the Corporation on Corporation indebtedness on the
date of exercise and repayable in equal annual installments over no more than
five (5) years or (iv) by causing the Corporation to withhold shares of Stock
otherwise issuable pursuant to the exercise of an Option equal in value to the
Option Price or portion thereof to be satisfied pursuant to this clause (iv).
shares of Stock acquired by the Optionee through exercise of an Option may be
surrendered in payment to the Exercise Price of Options; PROVIDED, HOWEVER, that
any Stock surrendered in payment must have been (a) held by the Optionee for
more than six months at the time of surrender or (c) acquired under an Option
granted not less than six months prior to the time of surrender. Payment in full
of the Exercise Price need not accompany the written notice of exercise provided
the notice directs that the Stock certificate or certificates for the shares for
which the Option is exercises be delivered to a licensed broker acceptable to
the Corporation as the agent for the individual exercising the Option and, at
the time such Stock certificate or certificates are delivered, the broker
tenders to the Corporation cash (or cash equivalents acceptable to the
Corporation) equal to the Exercise Price.
5. LIMITATIONS ON TRANSFER.
The Option is not transferable by the Optionee, other than by will or the
laws of descent and distibution in the event of death of the Optionee and shall
not be pledged or hypothexated (by operation of law or otherwise) or subject to
execution, attachment or similiar processes.
6. RIGHTS AS STOCKHOLDER.
Neither the Optionee nor any executor, administrator, distributee or
legatee of the Optionee's estate shall be, or have any of the rights or
privileges of, a stockholder of the Company in respect of any Shares
transferable hereunder unless and until such Shares have been fully paid and
certificates representing such Shares have been endorsed, transferred and
delivered, and the name of the Optionee (or of such personal representative,
administrator, distributee or legatee of the Optionee's estate) has been entered
as the stockholder of record on the books of the Company.
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7. EFFECT OF CHANGES IN CAPITALIZATION.
7.1 CHANGES IN SHARES.
If the number of outstanding Shares is increased or decreased or the
Shares are changed into or exchanged for a different number or kind of Shares or
other securities of the Company on account of any recapitalization,
reclassification, stock split, reverse split, combination of Shares, exchange of
Shares, stock dividend or other distribution payable in capital stock, or other
increase or decrease in such Shares effected without receipt of consideration by
the Company occurring after the date the Option is granted, a proportionate and
appropriate adjustment shall be made by the Company in the number and kind of
Shares subject to the Option, so that the proportionate interest of the Optionee
immediately following such event shall, to the extent practicable, be the same
as immediately prior to such event. Any such adjustment in the Option shall not
change the aggregate Option Price payable with respect to Shares subject to the
unexercised portion of the Option but shall include a corresponding
proportionate adjustment in the Option Price per Share.
7.2 REORGANIZATION IN WHICH THE COMPANY IS THE SURVIVING ENTITY.
Subject to Section 7.3, if the Company shall be the surviving entity
in any reorganization, merger or consolidation of the Company with one or more
other entities, the Option shall pertain to and apply to the securities to which
a holder of the number of Shares subject to the Option would have been entitled
immediately following such reorganization, merger or consolidation, with a
corresponding proportionate adjustment of the Option Price per Share so that the
aggregate Option Price thereafter shall be the same as the aggregate Option
Price of the Shares remaining subject to the Option immediately prior to such
reorganization, merger or consolidation.
7.3 REORGANIZATION IN WHICH THE COMPANY IS NOT THE SURVIVING ENTITY
OR SALE OF ASSETS OR SHARES.
Upon the dissolution or liquidation of the Company, or upon a merger,
consolidation or reorganization of the Company with one or more other entities
in which the Company is not the surviving entity, or upon a sale of
substantially all of the assets of the Company to another entity, or upon any
transaction (including, without limitation, a merger or reorganization in which
the Company is the surviving entity) approved by the Board which results in any
person or entity (or persons or entities acting as a group or otherwise in
concert) owning fifty (50) percent or more of the combined voting power of all
classes of securities of the Company, the Option hereunder shall terminate,
except to the extent provision is made in connection with such transaction for
the continuation and/or the assumption of the Option, or for the substitution
for the Option of new options covering the stock of a successor employer entity,
or a parent or subsidiary thereof, with appropriate adjustments as to the number
and kinds of shares and exercise prices, in which event the Option shall
continue in the manner and under the terms so provided. In the event of any such
termination of the Option, the Optionee shall have the right (subject to the
limitations on exercise set forth in Section 3.4 above), for 30 days
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immediately prior to the occurrence of such termination, to exercise the Option
in whole or in part, whether or not the Optionee was otherwise entitled to
exercise such Option at the time such termination occurs. The Company shall send
written notice of an event that will result in such a termination to the
Optionee not later than the time at which the Company gives notice thereof to
its stockholders.
7.4 ADJUSTMENTS.
Adjustments specified in this Section relating to Shares or securities of
the Company shall be made by the Committee, whose determination in that respect
shall be final, binding and conclusive. No fractional Shares or units of other
securities shall be issued pursuant to any such adjustment, and any fractions
resulting from any such adjustment shall be eliminated in each case by rounding
downward to the nearest whole share or unit.
8. GENERAL RESTRICTIONS.
The Company shall not be required to sell or issue any Shares under the
Option if the sale or issuance of such Shares would constitute a violation by
the individual exercising the Option or by the Company of any provision of any
law or regulation of any governmental authority, including without limitation
any federal or state securities laws or regulations. If at any time the Company
shall determine, in its discretion, that the listing, registration or
qualification of any Shares subject to the Option upon any securities exchange
or under any state or federal law, or the consent or approval of any government
regulatory body, is necessary or desirable as a condition of, or in connection
with, the issuance or purchase of Shares hereunder, the Option may not be
exercised in whole or in part unless such listing, registration, qualification,
consent or approval shall have been effected or obtained free of any conditions
not acceptable to the Company, and any delay caused thereby shall in no way
affect the date of termination of the Option. Specifically in connection with
the Securities Act of 1933 (as now in effect or as hereafter amended), unless a
registration statement under such Act is in effect with respect to the Shares
covered by the Option, the Company shall not be required to sell or issue such
Shares unless the Company has received evidence satisfactory to it that the
holder of the Option may acquire such Shares pursuant to an exemption from
registration under such Act. Any determination in this connection by the Company
shall be final, binding, and conclusive. The Company may, but shall in no event
be obligated to, register any securities covered hereby pursuant to the
Securities Act of 1933 (as now in effect or as hereafter amended). The Company
shall not be obligated to take any affirmative action in order to cause the
exercise of the Option or the issuance of shares pursuant thereto to comply with
any law or regulation of any governmental authority. As to any jurisdiction that
expressly imposes the requirement that the Option shall not be exercisable
unless and until the Shares covered by the Option are registered or are subject
to an available exemption from registration, the exercise of the Option (under
circumstances in which the laws of such jurisdiction apply) shall be deemed
conditioned upon the effectiveness of such registration or the availability of
such an exemption.
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9. WITHHOLDING OF TAXES.
The parties hereto recognize that the Company or a Subsidiary may be
obligated to withhold federal and local income taxes and Social Security taxes
to the extent that the Optionee realizes ordinary income in connection with the
exercise of the Option. The Optionee agrees that the Company or a Subsidiary may
withhold amounts needed to cover such taxes from payments otherwise due and
owing to the Optionee, and also agrees that upon demand the Optionee will
promptly pay to the Company or a Subsidiary having such obligation any
additional amounts as may be necessary to satisfy such withholding tax
obligation. Such payment shall be made in cash or cash equivalent.
10. DISCLAIMER OF RIGHTS.
No provision in this Option Agreement shall be construed to confer upon the
Optionee the right to be employed by the Company or any Subsidiary, or to
interfere in any way with the right and authority of the Company or any
Subsidiary either to increase or decrease the compensation of the Optionee at
any time, or to terminate any employment or other relationship between the
Optionee and the Company or any Subsidiary.
11. INTERPRETATION OF THIS OPTION AGREEMENT.
All decisions and interpretations made by the Committee or the Board of
Directors of the Company with regard to any question arising under the Plan or
this Option Agreement shall be binding and conclusive on the Company and the
Optionee and any other person entitled to exercise the Option as provided for
herein. In the event that there is any inconsistency between the provisions of
this Option Agreement and of the Plan, the provisions of the Plan shall govern.
12. GOVERNING LAW; JURISDICTION.
This Option Agreement is executed pursuant to and shall be governed by the
laws of the State of Maryland (but not including the choice of law rules
thereof).
13. DATE OF GRANT
The date of this Option is
14. BINDING EFFECT
Subject to all restiction sprovided for in this Option Agreemnt and
buy applicable la relting to assignment and transfer of this Option Agreement
and he option provided for herein, this Option Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respectve heirs,
executors, administrators, successors, and assigns.
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15. NOTICE
Any notice hereunder by the Optionee to the Company shall be in writing and
shall be deemed duly given if mailed or delivered to the Company at its
principal office, addressed to the attention of the Committee, or if so mailed
or delivered to such other address as the Company may hereafter designate by
notice to the Optionee. Any notice hereunder by the Company to the Optionee
shall be in writing and shall be deemed duly given if mailed or delivered to the
Optionee at the address specified below by the Optionee for such purpose, or if
so mailed or delivered to such other address as the Optionee may hereafter
designate by written notice given to the Company.
16. ENTIRE AGREEMENT.
This Option Agreement constitutes the entire agreement and supersedes all
prior understandings and agreements, written or oral, of the parties hereto with
respect to the subject matter hereof. Neither this Option Agreement nor any term
hereof may be amended, waived, discharged or terminated except by a written
instrument signed by the Company and the Optionee; PROVIDED, HOWEVER, that the
Company unilaterally may waive any provision hereof in writing to the extent
that such waiver does not adversely affect the interests of the Optionee
hereunder, but no such waiver shall operate as or be construed to be a
subsequent waiver of the same provision or a waiver of any other provision
hereof.
IN WITNESS WHEREOF, the parties hereto have duly executed this Option
Agreement, or caused this Option Agreement to be duly executed on their behalf,
as of the day and year first above written.
ATTEST: GUILFORD PHARMACEUTICALS INC.
By:
-----------------------------
Title:
OPTIONEE:
ADDRESS FOR NOTICE TO OPTIONEE:
Number Street
City State Zip Code
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GUILFORD PHARMACEUTICALS INC.
DIRECTORS STOCK OPTION PLAN
STOCK OPTION AGREEMENT
TABLE OF CONTENTS
PAGE
1. GRANT OF OPTION...................................................... 1
2. PRICE................................................................ 1
3. EXERCISE OF OPTION................................................... 1
3.1 Time of Exercise of Option...................................... 1
3.2 Exercise by Optionee............................................ 2
3.3 Termination of Option........................................... 2
3.4 Limitations on Exercise of Options.............................. 2
3.5 Reduction in Number of Shares Subject to Option................. 2
4. METHOD OF EXERCISE OF OPTION......................................... 3
5. LIMTATIONS ON TRANSFER............................................... 3
6. RIGHTS AS STOCKHOLDER................................................ 3
7. EFFECT OF CHANGES IN CAPITALIZATION.................................. 4
7.1 Changes in Shares............................................... 4
7.2 Reorganization in Which the Company Is the Surviving Entity..... 4
7.3 Reorganization in Which the Company Is Not the Surviving
Entity or Sale of Assets or Shares.............................. 4
7.4 Adjustments..................................................... 5
8. GENERAL RESTICTIONS.................................................. 5
9. WITHHOLDING OF TAXES................................................. 6
10. DISCLAIMER OF RIGHTS................................................. 6
11. INTERPRETATION OF THIS OPTION AGREEMENT.............................. 6
12. GOVERNING LAW........................................................ 6
13. DATE OF GRANT........................................................ 6
14. BINDING EFFECT....................................................... 6
15. NOTICE............................................................... 7
16. ENTIRE AGREEMENT..................................................... 7
GUILFORD PHARMACEUTICALS INC.
DIRECTORS STOCK OPTION PLAN
STOCK OPTION AGREEMENT
