Exhibit 10.5
CEPTOR CORPORATION
FOUNDERS' PLAN
(Adopted December 9, 2004)
ARTICLE I
GENERAL
1.1 OBJECTIVES AND PURPOSES OF THE PLAN
The purpose of the Ceptor Corporation (the "Company") Founders' Plan
(the "Plan") is to:
(a) Encourage individual effort and group teamwork toward the
accomplishment of the Company's goals;
(b) Reward outstanding executive and managerial performance and
contributions from directors, officers, consultants, advisors, and employees to
the Company;
(c) Provide total compensation which is competitive with the companies
comprising the industries with which the Company competes and takes into account
the Company's strategic goals and size and which is sufficient to ensure the
Company's ability to attract, retain and motivate executives, managers and
others; and
(d) Focus the attention of participants on Company goals and on other
performance indicators which may also be used in connection with the Plan.
1.2 ADMINISTRATION
(a) The Plan shall be administered by the Board of Directors or by a
Committee of the Board of Directors of the Company (the "Committee") which shall
consist of two or more directors. Each member shall be a "Non-employee director"
as that term is defined by Rule 16b-3(b)(3) (or any successor rule) promulgated
under the Securities Exchange Act of 1934, as amended, and an "outside director"
as that term is referred to in Section 162(m)(4)(C)(i) of the Internal Revenue
Code of 1986, as amended, and regulations promulgated thereunder (and any
successor section or regulation). The members of the Committee shall be
appointed by the Board of Directors, and any vacancy on the Committee shall be
filled by the Board. The Committee shall select a Chairman from their number and
designate a Secretary, who need not be a member of the Committee and who may be
a participant under the Plan. The Committee described herein may be the same
Committee which administers the Company's 2004 Incentive Stock Plan, unless
otherwise determined by the Board.
(b) The Secretary of the Committee shall keep minutes of its meetings
and of any actions taken by it without a meeting. A majority of the Committee
shall constitute a quorum and all acts of the majority shall be acts of the
Committee. Any action that may be taken at a meeting of the Committee may be
taken without a meeting if a consent or consents in writing setting forth the
action taken shall be signed by all of the members of the Committee. The
Committee shall meet at such time and place as the Chairman or, in the
Chairman's absence, any member may designate. The Committee shall make
appropriate reports to the Board concerning the operations of the Plan.
(c) The Committee shall have full power to construe and interpret the
Plan; to determine (subject to Article II) the persons who shall participate
under the Plan and the amount of their target and actual awards; to establish
performance measures, goals and formulas in addition to the provisions of
Article III below; to review Company and individual participant performance and
make determinations on the extent to which (i) such performance meets the
Committee's established standards, (ii) awards are payable, (iii) acceleration
of vesting or adjustment to target or actual award conditions are appropriate
either on an individual participant or plan-wide basis, and to determine any and
all questions arising under the Plan. All determinations, constructions,
interpretations, rules and regulations made pursuant to this Section shall be
recorded by the Committee in its minutes, and shall be conclusive and binding
upon the Company and all participants.
1.3 MAXIMUM NUMBER OF SHARES
The maximum number of shares of the Company's common stock that may be
issued for all purposes under this Plan shall be 1,400,000.
ARTICLE II
ELIGIBILITY FOR AWARDS
2.1 GENERAL ELIGIBILITY
The Committee, after consulting with management, shall determine and
announce the persons who shall be eligible for awards under the Plan and the
amount of such awards. Eligibility shall be limited to directors, officers,
consultants, advisors, and employees of the Company (and their designees
reasonably acceptable to the Committee) who have made or expected to make a
meaningful distribution towards the accomplishment of the Company's goals.
2.2 OTHER ANNUAL INCENTIVE PLANS OR ARRANGEMENTS
The existence of the Plan shall not preclude the operation of other
incentive plans or arrangements in the Company and/or its subsidiaries.
2.3 ELIGIBILITY
(a) In addition to those employees who may be eligible to participate
in the Plan pursuant to Section 2.1, the following incumbent participants shall
receive awards under the Plan (provided each such individual is employed by the
Company at the time of award):
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NAME POSITION
- ---- --------
William H. Pursley CEO and Chairman of the Board of Directors 576,000
Norman W. Barton, M.D., Ph.D. EVP, Chief Medical Officer 210,000
Alfred Stracher, Ph.D. SVP, Chief Scientific Officer 105,000
Leo Kesner, Ph.D. VP, Research 105,000
Donald W. Fallon SVP, Finance & Administration, CFO 96,000
Leslie de Vos, RN, MSN VP, Project Management & Clinical Operations 46,400
Theresa Michele, M.D. VP, Clinical Research 46,400
Francis Zbikowski VP, Business & Commercial Development 46,400
Mary Brinker 6,400
Tomoka Davidsen 6,400
Harbor Trust 156,000
-------
1,400,000
Such awards shall be in the form of non-qualified stock options
("Options") to acquire shares of the Company's Common Stock, par value $0.00001
per share ("Common Stock") and shall have an exercise price equal to the par
value per share of Common Stock. All awards of Options under the Plan shall be
fully vested upon issuance and may be exercised only for shares of Restricted
Stock in the Company containing such restrictions as the Company in its sole
discretion shall determine, and such Restricted Stock shall, as a condition of
awards hereunder and the issuance of the Option and the Restricted Stock,
continue to be subject to identical restrictions set forth in Section 2.3(d)-(i)
hereof (and any other restrictions imposed by the Committee), and be subject in
all respects to a Buy-Sell Agreement with the Company in the form established by
the Company for such purpose. By accepting such award, each participant agrees
to such terms and conditions and to be bound by such agreements and the terms of
this Plan.
(b) A change or changes in the positions held by each such incumbent
officer shall not affect the right to participate in the Plan.
(c) The number of shares ("Number") designated for issuance under the
Plan and individually to Plan participants under paragraph 2.3(a) hereof may be
revised by the Committee without consent of any recipient of any award or Plan
participant in the event that the pre-money value per share of the Company that
is determined in connection with the Company's next round of financing, or price
per share of Common Stock indicated thereby, ("Qualified Financing") is higher
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or lower than the Assumed Company Value. For the purposes hereof, "Assumed
Company Value" shall mean $16 million based upon 3.2 million issued shares, at a
value of $5.00 per share, post-split.
(d) Each eligible participant under the Plan, by acceptance of any
award under the Plan, irrevocably constitutes and appoints the Committee and the
Secretary of the Company (or such other Person as is designated by the
Committee) with full power of substitution its true and lawful attorney, in his
name, place and stead, to make, execute, sign, acknowledge, record and file with
respect to the Company: (i) any certificate or other instrument which may be
required to be filed by the Company under the laws of the State of Florida and
any other jurisdiction whose laws may be applicable which the Committee shall
deem advisable to file to effectuate the intent and purposes of this Paragraph
2.3; (ii) any and all amendments of the instruments described in the preceding
sentence, provided such amendments are either required by law to be filed, or
are consistent with this intent and purposes of this Paragraph 2.3 or have been
duly authorized by the Committee; (iii) any certificate or other instrument
which may be deemed necessary or desirable to effect the revision to the Number
or the portion of the Number of shares of the Company issued or for which a
participant under the Plan is or may become eligible for in accordance with the
terms hereof; and (iv) to indicate in the stock transfer records and other books
and records of the Company, and of any transfer agent of the Company, that the
Committee has taken such action.
(e) The grant of authority under this Paragraph 2.3 is: (i) a special
power of attorney, coupled with an interest, is irrevocable and shall survive
the death or legal capacity of each Plan participant granting the power; (ii)
exercisable by the Committee (or the holder of such power) on behalf of each
participant by a facsimile signature or by listing all of the Plan participants
so executing any instrument with a single signature as attorney-in-fact for all
of them; and (iii) shall survive the delivery of any transfer or assignment by a
Plan participant of the whole or any portion of its interest, except that where
the assignee thereof has been approved by the Committee, the Power of Attorney
shall survive the delivery of such assignment for the sole purpose of enabling
the Committee to execute, acknowledge and file any instrument necessary to
effect such substitution, in each case, without any further action or consent of
the participant. In the event of any exercise of this power of attorney, prompt
notice shall be given the participant(s) effected by such action, but such
notice shall not be required for the effectiveness of such action.
(f) The Committee may place such restrictions on the shares of the
Company's common stock awarded to a Plan participant hereunder as the Committee,
in its absolute discretion, determines. In the absence of a specific
determination by the Committee, any shares of the Company's common stock issued
under the Plan shall be "restricted shares" which may not be sold, transferred,
assigned, including by court order operation of law, equitable or other
distribution after divorce or separation, settlement, exchange, waiver,
abandonment, gift, alienation, bequest or disposal, and may not be pledged
without the consent of the Committee which shall vest and such restrictions
shall lapse, upon the filing of an IND application with the United States Food
and Drug Administration (FDA) for a Phase III clinical trial for the Company's
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"Myodor" technology, provided such date is not less than six months following
the date of award. In the event a participant that is an employee ceases to be
an employee of the Company prior to the date at which the restrictions lapse,
all options and shares of Restricted Stock held by such person shall revert to
the Company or, at his sole election, to William Pursley or his designee. In the
event of a Change in Control all restrictions theretofore established by the
Committee in respect of shares of the Company's common stock (other than those
relating to federal and state securities laws) or under this Plan shall
immediately lapse.
(g) For purposes of this Article II, "Change in Control" means and
shall be deemed to have occurred if:
(i) the direct or indirect acquisition, whether by sale, merger,
consolidation, or purchase, of assets or stock, by any person, corporation or
other entity or group thereof, of the beneficial ownership (as that term is used
in Section 13(d)(1) of the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder) of shares of voting securities of
the Company which, when added to any other shares the beneficial ownership of
which is held by the acquirer, shall result in the acquirer's having more than
50% of the votes that are entitled to be cast at meetings of stockholders of the
Company as to matters on which all outstanding shares are entitled to be voted
as a single class; provided, however, that such acquisition shall not constitute
a Change in Control for purposes of this Plan if prior to such acquisition a
resolution declaring that the acquisition shall not constitute a Change in
Control is adopted by the Board with the support of a majority of the Board
members who either were members of the Board for at least two years prior to the
date of the vote on such resolution or were nominated for election to the Board
by at least two-thirds of the directors then still in office who were members of
the Board at least two years prior to the date of the vote on such resolution;
and provided further that neither the Company, nor any person who as of December
9, 2004 was a director or officer of the Company, nor any trustee or other
fiduciary holding securities under an employee benefit plan of the Company, nor
any corporation owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of shares of
the Company shall be deemed to be an "acquirer" for purposes of this Article II;
or
(ii) the individuals who, as of December 9, 2004, constitute the
Board or who thereafter are elected to the Board and whose election, or
nomination for election, to the Board was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either were directors
as of December 9, 2004 or whose election or nomination for election was
previously so approved (the "Continuing Directors"), cease for any reason to
constitute a majority of the members of the Board; or
(iii) the stockholders of the Company approve a merger,
consolidation, recapitalization or reorganization of the Company, a reverse
stock split of outstanding voting securities, or consummation of any such
transaction if shareholder approval is not obtained, other than any such
transaction which would result in at least 75% of the total voting power
represented by the voting securities of the surviving entity outstanding
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immediately after such transaction being Beneficially Owned by at least 75% of
the holders of outstanding voting securities of the Company immediately prior to
the transaction, with the voting power of each such continuing holder relative
to other such continuing holders not substantially altered in the transaction;
or
(iv) the stockholders of the Company approve 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;
provided, however, that an event or transaction that would otherwise be deemed a
Change in Control shall not be deemed a Change in Control if the Board adopts a
resolution approved by a vote of at least two-thirds (2/3) of the directors then
still in office who are Continuing Directors, not later than 60 days after the
Company receives notice of the event or transaction constituting a Change in
Control under (i) above and not later than the occurrence of the event or
transaction constituting a Change in Control under (iii) or (iv) above,
determining that such event or transaction should not constitute a Change in
Control for purposes of the Plan.
For purposes of this Section 3, "Beneficial Owner," "Beneficially
Owns," and "Beneficial Ownership" shall have the meanings ascribed to such terms
for purposes of Section 13(d) of the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
(h) Notwithstanding anything to the contrary contained herein, all
certificates for shares of the Company's Common Stock delivered under the Plan
pursuant to any award shall be subject to such stop-transfer orders and other
restrictions as the Committee may deem advisable under federal or state
securities laws, rules and regulations thereunder, and the rules of any national
securities exchange or automated quotation system on which such shares are
listed or quoted. Shares of the Company's Common Stock subject to restrictions
may not be sold, assigned, transferred, pledged or otherwise encumbered, except
as hereinafter provided, during the restriction period. Except for such
restrictions on transfer, the participant, as owner of such shares of restricted
stock, shall have all the rights of a holder of such restricted stock including
the right to vote such shares, provided, however, such restricted stock may
contain limitations on the right to vote restricted stock or the right to
receive dividends thereon and restrictions that may lapse separately, or in
combination at such times, under such circumstances, in such installments, or
otherwise, as the Committee shall determine at the time of grant or thereafter.
The Company shall cause a legend or legends to be placed on any such
certificates to make appropriate reference to such restrictions or any other
restrictions that may be applicable to such shares, including under the terms of
the Plan. In addition, during any period in which such shares are subject to
restrictions under the terms of the Plan or during any period during which
delivery or receipt of such shares has been deferred by the Committee or a Plan
participant, the Committee may require the Participant to enter into an
agreement providing that certificates representing such shares issuable or
issued pursuant to an award shall remain in the physical custody of the Company
or such other person as the Committee may designate. At the expiration of any
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such restricted period, the Company shall redeliver to the participant (or such
participant's legal or designated beneficiary) the shares deposited pursuant to
Section 3.2.
ARTICLE III
TIMING AND FORM OF AWARDS
3.1 TIMING OF PAYMENT
(a) Awards may be paid as soon as practicable after determination by
the Committee, or otherwise deferred in accordance with Section 3.1(b).
(b) The Committee may also in its sole discretion establish terms and
conditions under which a participant may elect to defer the payment of an
incentive award in whole or in part to a period following retirement or other
termination of employment, provided that any election by an employee to defer
payment shall be irrevocably made by the participant at such time prior to
December 31 of the year preceding the Plan Year for which such incentive award
shall be made (or such other appropriate time for a deferral election as is then
appropriate under applicable law) as the Committee shall determine (provided
that if the determination of eligibility is made subsequent to December 31, a
participant must make such election within ten days of being notified he or she
is eligible to participate).
3.2 CUSTODY
All shares of Restricted Stock and certificates therefor issued under
the Plan shall remain in the custody of the Secretary of the Company, subject to
adjustment and replacement as provided in Section 2.3(c)-(e) hereof unless and
until the Committee directs delivery to the Plan participants, individually or
collectively, or until expiration of the restrictions thereon.
ARTICLE IV
DISTRIBUTION OR TRANSFER - WITHHOLDING OF TAX - MISCELLANEOUS
4.1 LIMITATION ON DISTRIBUTION OR TRANSFER OF AWARDS.
Unless otherwise determined by the Committee, no right or interest of
any participant in any awards under the Plan shall be pledged, encumbered, or
hypothecated to or in favor of any party other than the Company, or shall be
subject to any lien, obligation, or liability of such participant to any party
other than the Company. Unless otherwise determined by the Committee, no award
shall be assignable or transferable by a participant otherwise than by will or
the laws of descent and distribution and pursuant to a domestic relations order
as defined by the Internal Revenue Code of 1986, as amended, or Title I of the
Employee Retirement Income Security Act of 1974, as amended.
4.2 NO RIGHT TO EMPLOYMENT
Nothing contained in the Plan or any participant's participation in the
Plan shall confer, and no grant of an award shall be construed as conferring,
upon any participant, any right to continue in the employ of the Company or to
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interfere in any way with the right of the Company to terminate such
participant's employment at any time or increase or decrease such participant's
compensation.
4.3 GOVERNING LAW
The validity, construction, and effect of the Plan and any rules and
regulations relating to the Plan shall be determined in accordance with the
internal laws of the State of Florida, without giving effect to principles of
conflicts of laws, and applicable federal law.
4.4 WITHHOLDING OF TAXES
The Company shall have the right to deduct from any incentive award or
other amount to be paid pursuant to this Plan, or to otherwise require a
participant to pay prior to any such payment, all Federal, State or local taxes
required by law to be withheld in respect of such payment.
4.5 GENERAL RESTRICTIONS
Each award of shares of the Company's common stock under the Plan shall
be subject to the condition that, if at any time the Committee shall determine
that (i) the listing, registration or qualification of the Shares upon any
securities exchange or under any state or federal law, (ii) the consent or
approval of any government or regulatory body or (iii) an agreement by the
Participant with respect thereto, is necessary or desirable, then such award
shall not be consummated, in whole or in part, unless such listing,
registration, qualification, consent, approval or agreement shall have been
effected or obtained free of any conditions not acceptable to the Committee.
4.6 HOLDBACK
If the Company files a registration statement in connection with an
underwritten public offering, or otherwise determines it to be in the best
interest of the Company, a holder of Restricted Stock issued under the Plan
shall not effect any sale or distribution of any shares (except pursuant to such
registration statement) of the capital stock of the Company, whether now owned
or hereafter acquired during a reasonable and customary period of time, as
agreed to by the Company and the underwriters or otherwise determined by the
Company, not to exceed 180 days, following the effective date of a registration
statement filed under the Securities Act in connection with any public offering
or sales of the Company (or its stockholders) pursuant to any registration
statement and, not to exceed 90 days, following the effective date of a
registration statement filed under the Securities Act in connection with the
next two subsequent registered offerings of the Company (other than pursuant to
form S-8 registering employee securities). In order to enforce the foregoing
covenant, the Company may impose stop-transfer instruction with respect to each
holder until the end of such reasonable and customary period.
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ARTICLE V
EFFECTIVE DATE, AMENDMENT, AND TERMINATION OF PLAN
5.1 EFFECTIVE DATE
The Plan shall become effective as of December 9, 2004.
5.2 AMENDMENT, SUSPENSION AND TERMINATION OF PLAN
The Board of Directors of the Company or the Committee may suspend or
terminate the Plan or any portion thereof at any time and may amend, subject to
obtaining requisite stockholder approval for those amendments required to
preserve the tax deductibility of compensation in excess of $1 million paid to
executives of the Company or the compliance by the Plan and transactions
occurring under the Plan with Rule 16b-3 under the Securities Exchange Act of
1934 or as may otherwise be required by law, the Plan from time to time in such
respects as the Board of Directors or the Committee may deem advisable and in
the best interest of the Company.
5.3 RESTRICTIONS UNDER RULE 16B-3
Unless a participant is not subject to short-swing liability under
Section 16(b) of the Securities Exchange Act of 1934 in respect of the sale or
other transfer of shares of common stock of the Company issued under the Plan,
such shares of common stock shall be held for at least six months from the date
of grant.
5.4 COMPLIANCE WITH RULE 16B-3
It is the intent of the Company that this Plan comply in all respects
with Rule 16b-3 under the Securities Exchange Act of 1934 (or any successor
rule) in connection with any Award granted to a person who is subject to Section
16 of the Securities Exchange Act of 1934. Accordingly, any provision of this
Plan that does not comply with the requirements of Rule 16b-3 (or any successor
rule) as then applicable to any such person shall be construed or deemed amended
to the extent necessary to conform to such requirements, except that such
automatic amendment shall not apply to any other participant who is not (at the
time of such application) subject to Section 16 of the Securities Exchange Act
of 1934.
CEPTOR CORPORATION
December 9, 2004
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