ACCESS PHARMACEUTICALS, INC.
1995 Stock Option Plan
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As amended, March 28, 1996
1. Definitions. As used in this 1995 Stock Option Plan of
Access Pharmaceuticals, Inc., the following terms shall have the
following meanings:
Award means the grant or sale pursuant to the Plan of any Option or
SAR.
Code means the Internal Revenue Code of 1986, as amended.
Committee means a committee comprised of two or more Directors of
the Company, appointed by the Board of Directors of the Company,
responsible for the administration of the Plan, as provided in
Section 4.
Company means Access Pharmaceuticals, Inc., a Delaware corporation.
Grant Date means the date on which an Option or SAR is granted, as
specified in Section 7 or Section 10.
Incentive Option means an Option that satisfies the requirements of
Section 422 of the Code.
Market Value means the closing bid price, if available, or
otherwise the mean between the high and low sale prices of Common
Stock on the stock exchange or market on which Common Stock is
primarily traded on the date as of which such value is being
determined or, if there shall be no bid or sale on that date, the
fair market value for a share of the Stock on such date shall be as
determined by the Committee.
Nonstatutory Option means an Option that will not be treated as an
Incentive Option.
Option means an option to purchase shares of the Stock granted
under the Plan, which shall be either an Incentive Option,
Nonstatutory Option or Stock Appreciation Right.
Option Agreement means an agreement between the Company and an
Optionee, setting forth the terms and conditions of an Option.
Optionee means a person eligible to receive an Option, as provided
in Section 6 or Section 10, to whom an Option shall have been
granted under the Plan.
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Participant means any person to whom an Award shall have been
granted.
Person means any individual, corporation, partnership or other
person or entity, together with its "Affiliates" and "Associates"
(as defined in Rule 12b-2 under the Securities Exchange Act of
1934).
Plan means this 1995 Stock Option Plan of the Company, as amended.
Stock means the Common Stock, $.04 par value per share, of the
Company.
Stock Appreciation Right means the right, pursuant to an Award
granted under Section 11 below, to surrender to the Company all (or
a portion) of an Option in exchange for an amount equal to the
difference between (i) the Market Value, as of the date such Option
(or such portion thereof) is surrendered, of the shares of Stock
covered by such Option (or such portion thereof) and (ii) the
aggregate exercise price of such Option (or such portion thereof).
2. Purpose. The Plan is intended to encourage ownership of the
Stock by employees, consultants and directors of the Company and
its subsidiaries and is intended to provide additional incentive
for them to promote the success of the Company's business. The
Plan is intended to be an incentive stock option plan within the
meaning of Section 422 of the Code, but not all Options granted
hereunder are required to be or to remain Incentive Options.
3. Term of the Plan. Options under the Plan may be granted on or
after September 14, 1995 but not later than September 14, 2005.
4. Administration. The Plan shall be administered by the
Committee. No member of the Committee shall have received an
Option during service on the Committee or during the one-year
period preceding such service, other than an Option received
pursuant to Section 10. Subject to the provisions of the Plan, the
Committee shall have complete authority, in its discretion, to make
the following determinations with respect to each Option to be
granted by the Company to any employee of the Company or a
subsidiary: (a) whether the Option will be an Incentive Option,
Nonstatutory Option or Stock Appreciation Right; (b) the person to
receive the Option; (c) the time of granting the Option; (d) the
number of shares subject to the Option; (e) the option price; (f)
the vesting period (if any) applicable to, and the term of, any
Option; (g) the restrictions (if any) to be imposed upon transfer
of shares of the Stock purchased by the Optionee upon the exercise
of the Option; and (h) whether and under what circumstances an
Option may be settled in cash or Stock. The Committee shall have
complete authority to interpret the Plan, to prescribe, amend and
rescind rules and regulations relating to it, to determine the
terms and provisions of the respective option agreements (which
need not be identical), and to make all other determinations
necessary or advisable for the administration of the Plan. The
Committee's determination on the matters referred to in this
Section 4 shall be conclusive.
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5. Stock Subject to the Plan. The Plan covers 2,000,000 shares
of Stock, subject, however, to the provisions of Section 17. The
number of shares purchased pursuant to the exercise of Options
granted under the Plan and the number of shares subject to
outstanding Options granted under the Plan shall be charged against
the shares covered by the Plan; but shares subject to Options which
terminated without being exercised shall not be so charged. Shares
to be issued upon the exercise of Options granted under the Plan
may be either authorized but unissued shares or shares held by the
Company in its treasury. If any Option expires or terminates for
any reason without having been exercised in full, the shares not
purchased thereunder shall again be available for Options
thereafter to be granted.
6. Eligibility. An Incentive Option may be granted only to an
employee of the Company or one or more of its subsidiaries. A
Nonstatutory Option or Stock Appreciation Right may be granted to
any person designated by the Committee. Any person who, within the
meaning of Section 422(b)(6) of the Code, is deemed to own stock
possessing more than 10% of the total combined voting power of all
classes of stock of the Company (or of a parent or subsidiary
corporation thereof) shall be eligible to receive an Incentive
Option only if the option price of such Incentive Option is at
least 110% of the Market Value as of the Grant Date and the term of
such Incentive Option is not more than five years.
7. Time of Granting Options. Subject to the provisions of the
Plan, the granting of Options shall take place at the time
specified by the Committee.
8. Option Price. Subject to the provisions of the Plan, the
option price shall be determined by the Committee, but the option
price for each Incentive Option shall be the Market Value on the
Grant Date.
9. Maximum Size of Options. The aggregate Market Value of Stock
for which Incentive Options become exercisable by an Optionee for
the first time in any calendar year shall not exceed $100,000. To
the extent that such aggregate Market Value exceeds $100,000, those
Options intended to be Incentive Options shall be treated as
Nonstatutory Options. For purposes of this Section 9, all
Incentive Options granted to an Optionee by the Company shall be
considered in the order in which they were granted, and the Market
Value shall be determined as of each Grant Date. The maximum
number of Options which may be granted in any fiscal year to any
one individual is 500,000.
10. Formula Awards.
10.1. Automatic Grants. On the date of each Annual Meeting of
the Stockholders of Company, each Non-Employee Director (as defined
below) serving as such on such date shall receive a Nonstatutory
Option for the purchase of 6,667 shares of Stock. On the date that
a Non-Employee Director is initially elected or appointed by the
Board of Directors such Non-Employee Director shall receive a
Nonstatutory Option to purchase 30,000 shares of Stock.
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10.2. Term and Vesting. Each Option granted under Section 10.1
shall expire at the earlier of (i) 90 days after such Non-Employee
Director no longer serves as a director of the Company or (ii) the
end of ten years and one day after the Grant Date. Each Option
shall be fully exercisable six (6) months after the Grant Date.
10.3. Non-Employee Director. For purposes of the grant of
Options hereunder upon appointment, election or reelection to the
Board of Directors, "Non-Employee Director" shall mean a member of
the Board of Directors who is not an employee of the Company on the
date of such election or reelection, as applicable.
11. Stock Appreciation Rights.
11.1. Provision for Grant. Stock Appreciation Rights may be
granted in conjunction with all or part of any Option granted under
the Plan. In the case of a Nonstatutory Option, such rights may be
granted either at or after the time of the grant of such Option.
In the case of an Incentive Option, such rights may be granted only
at the time of the grant of such Option.
11.2. Termination. A Stock Appreciation right or applicable
portion thereof granted with respect to a given Option shall
terminate and no longer be exercisable upon the termination or
exercise of the related Stock Option, except that, unless otherwise
determined by the Committee at the time of grant, a Stock
Appreciation Right granted with respect to less than the full
number of shares covered by a related Option shall not be reduced
until the number of shares covered by an exercise or termination of
the related Option exceeds the number of shares not covered by the
Stock Appreciation Right.
11.3. Manner and Effect of Exercise. A stock Appreciation
Right may be exercised by an Optionee, in accordance with Section
11.4, by surrendering the applicable portion of the related Option.
Upon such exercise and surrender, the Optionee shall be entitled to
receive an amount determined in the manner prescribed in Section
11.4. Options which have been so surrendered, in whole or in part,
shall no longer be exercisable to the extent the related Stock
Appreciation Right has been exercised.
11.4. Other Terms and Conditions. Stock Appreciation Rights
granted under the Plan shall be subject to the following terms and
conditions, and shall contain such additional terms and conditions,
not inconsistent with the provisions of the Plan, as the Committee
shall deem appropriate:
(a) Exercisability. Stock Appreciation Rights shall be
exercisable only at such time or times and to the extent that the
Options to which they relate, if any, shall be exercisable in
accordance with the provision of the Plan; provided, however, that
a Stock Appreciation Right granted subsequent to the grant of the
related Option shall not be exercisable during the first six months
of
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its term; and provided, further, however, that a Stock
Appreciation Right granted in connection with an Incentive Option
may be exercised only if and when the market price of the Stock
subject to the Incentive Option exceeds the exercise price of such
Stock Option.
(b) Amount Payable. Upon the exercise of a Stock Appreciation
Right, an Optionee shall be entitled to receive up to, but not more
than, an amount in cash or shares of Stock equal in value to the
excess of the Market Value of one share of Stock over the option
price per share specified in the related Option, multiplied by the
number of shares in respect of which the Stock Appreciation Right
shall have been exercised. The Committee shall determine the form
of payment.
(c) Transferability. Stock Appreciation Rights shall be
transferable only when and to the extent that the underlying Option
would be transferable under the Plan.
12. Exercise of Option. In order to exercise an Option, the
Optionee shall give written notice of exercise to the Chief
Financial Officer of the Company. The Optionee shall enclose a
personal check equal to the option price or shares of Stock with a
Market Value on the purchase date at least equal to the option
price. The Company shall deliver or cause to be delivered to the
Optionee a certificate for the number of shares then being
purchased by him. If any law or applicable regulation of the
Securities and Exchange Commission or other body having
jurisdiction in the premises shall require the Company or the
Optionee to take any action in connection with shares being
purchased upon exercise of the Option, exercise of the Option and
delivery of the certificate or certificates for such shares shall
be postponed until completion of the necessary action. Each
outstanding Option shall be reduced by one share for each share of
the Stock purchased upon exercise of the option.
13. Purchase for Investment. Unless the shares to be issued upon
exercise of an Option have been effectively registered under the
Securities Act of 1933 as now in force or hereafter amended, the
Company shall be under no obligation to issue any shares covered by
any Option unless the person who exercises the Option, in whole or
in part, shall give a written representation to the Company,
satisfactory in form and substance to its counsel and upon which
the Company may reasonably rely, that he or she is acquiring such
shares as an investment and not with a view to, or for sale in
connection with, the distribution of any such shares. Each
certificate representing a share of Stock issued pursuant to the
exercise of an Option may bear a reference to any investment
representation made in accordance with this Section 13 and to the
fact that no registration statement has been filed with the
Securities and Exchange Commission in respect to that Stock.
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14. Withholding; Notice of Disposition of Stock Prior to
Expiration of Specified Holding Period.
14.1. Whenever shares are to be issued upon exercise of an Option,
the Company shall have the right to require the Optionee to remit
to the Company an amount sufficient to satisfy federal, state,
local or other withholding tax requirements (whether so required to
secure for the Company an otherwise available tax deduction or
otherwise) if and to the extent required by law prior to the
delivery of any certificate or certificates for such shares.
14.2. The Company may require as a condition to the issuance of
shares covered by any Incentive Option that the person exercising
the Option give a written representation to the Company,
satisfactory in form and substance to its counsel and upon which
the Company may reasonably rely, that he or she will report to the
Company any disposition of those shares prior to the expiration of
the holding periods specified by Section 422(a)(1) of the Code. If
and to the extent that the disposition imposes upon the Company
federal, state, local or other withholding tax requirements, or any
such withholding is required to secure for the Company an otherwise
available tax deduction, the Company shall have the right to
require that the person making the disposition remit to the Company
an amount sufficient to satisfy those requirements.
15. Transferability of Options. Options shall not be
transferable, otherwise than by will or the laws of descent and
distribution, and may be exercised during the life of the Optionee
only by the Optionee; provided, however, the Committee may grant
Options that are transferable, without payment of consideration, to
immediate family members of the Optionee or to trusts or
partnerships for such family members. The Committee may also amend
outstanding Options to provide for such transferability.
16. Reorganization of the Company. Notwithstanding any provisions
of this Plan to the contrary, including those with respect to
vesting contained herein, Options herein granted may be exercised
(in the manner set forth herein) for the full number of shares
covered upon the occurrence of any of the following events
subsequent to the effective date of this Plan (other than pursuant
to the currently contemplated merger of the Company and Access
Pharmaceuticals, Inc.):
(a) any Person or Persons acting as a group, become(s) after the
date of this Agreement the "beneficial owner" (as defined in Rule
13d-3 under the Securities Exchange Act of 1934, as amended),
directly or indirectly, of voting shares (or shares convertible
into voting shares) representing 25% or more of the Company's then
outstanding voting shares (or shares convertible into voting
shares); or
(b) there shall be a sale of all, or substantially all, of the
Company's assets, or the Company shall merge or consolidate with
another corporation and the stockholders of the Company immediately
prior to such transaction do not own, immediately after such
transaction, stock of the purchasing or surviving corporation in
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this transaction (or of the parent corporation of the purchasing or
surviving corporation) possessing more than 50% of the voting power
(for the election of Directors) of the outstanding stock of that
corporation, which ownership shall be measured without regard to
any stock of the purchasing, surviving or parent corporation owned
by the stockholders of the Company before the transaction;
provided, however, the provisions of this Section which would
otherwise be applicable, shall not apply to a merger or
consolidation which does not change any voting securityholder's
percentage ownership of the outstanding voting stock in any
successor to the Company from the percentage of such stock
beneficially owned by such holder in the Company prior to such
merger or consolidation, and shall not apply to a transfer o fall
or substantially all of the assets of the Company to a wholly-owned
subsidiary of the Company.
17. Adjustment of Number of Shares. In the event of any stock
dividend payable in the Stock or any split-up or contraction in the
number of shares of the Stock occurring after the date of the
agreement and prior to the exercise in full of the Option, the
number of shares for which the Option may thereafter be exercised
shall be proportionately adjusted. In case of any reclassification
or change of outstanding shares of the Stock, shares of stock or
other securities equivalent in kind and value to those shares which
a holder would have received if he or she had held the full number
of shares of the Stock subject to the Option immediately prior to
such reclassification or change and had continued to hold those
shares (together with all other shares, stock and securities
thereafter issued in respect thereof) to the time of exercise of
the Option shall thereupon be subject to the Option. Subject to
the provisions of Section 16, in case of any consolidation or
merger of the Company with or into another company or in case of
any sale or conveyance to another company or entity of the property
of the Company as a whole, the Option shall terminate and, to the
extent that the value of the shares of stock, other securities or
cash which a stockholder is entitled to receive for one share of
Stock in connection with such transaction exceeds the option price
of the Option, the Optionee shall be entitled to receive either
cash or shares of stock or other securities equivalent in kind to
the cash or those shares which a holder would have received if he
or she had exercised the Option in full (to the extent then
exercisable) and held the total number of shares of the Stock
subject to such Option immediately prior to such consolidation,
merger, sale or conveyance and with a value equal to such excess
amount multiplied by the number of shares he or she would have
received if he or she so exercised the Option at such time.
Subject to the provisions of Section 16, upon dissolution or
liquidation of the Company, the Option shall terminate, but the
Optionee (if at the time in the employ of the Company or any of its
subsidiaries) shall have the right, immediately prior to such
dissolution or liquidation, to exercise the Option to the full
extent not theretofore exercised. No fraction of a share shall be
purchasable or deliverable, but in the event any adjustment of the
number of shares covered by the Option shall cause such number to
include a fraction of a share, such fraction shall be adjusted to
the nearest smaller whole number of shares. In the event of
changes in the outstanding Common Stock by reason of any stock
dividend, split-up, contraction, reclassification, or change of
outstanding shares of the Stock of the nature contemplated by this
Section 17, the number of shares of the Stock available for the
purpose of the Plan as stated in Section 5 shall be correspondingly
adjusted.
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18. Limitation of Rights in Option Stock. The Optionee shall have
no rights as a stockholder in respect of shares as to which his or
her Option shall not have been exercised, certificates issued and
delivered and payment as herein provided made in full, and shall
have no rights with respect to such shares not expressly conferred
by this Plan.
19. Stock Reserved. The Company shall at all times during the
term of the Options reserve and keep available such number of
shares of the Stock as will be sufficient to satisfy the
requirements of this Plan and shall pay all other fees and expenses
necessarily incurred by the Company in connection therewith.
20. Purchase for Investment. The Optionee shall make such
representations with respect to investment intent and the method of
disposal of optioned shares as the Board of Directors of the
Company may deem advisable in order to assure compliance with
applicable securities laws.
21. Termination and Amendment of Plan. The Board of Directors of
the Company may at any time terminate the Plan or make such
modifications of the Plan as it shall deem advisable, provided,
however, that, if required by applicable law with respect to a
certain modification, the Board shall seek the approval of such
modification by the holders of a majority of the outstanding Stock
present or represented and entitled to vote at a meeting of the
stockholders of the Company, and further provided, that the Board
of Directors of the Company may not amend the Plan more than once
in any six (6) month period so as to modify Section 10, except that
the Board of Directors may make an amendment to Section 10 to
comport with changes in the Code, the Employee Retirement Income
Security Act of 1974, as amended, or the rules and regulations
under either such statute. No termination or amendment of the Plan
may, without the consent of the Optionee to whom any Option shall
theretofore have been granted, adversely affect the rights of that
Optionee under that Option.
The undersigned, as Assistant Secretary of Access Pharmaceuticals,
Inc. hereby certifies that the foregoing 1995 Stock Option Plan was
adopted by the Board of Directors of the Company on September 14,
1995 and ratified by the stockholders of the Company on January 25,
1996, and was amended by the Board of Directors of the Company on
March 28, 1996, such amendment being ratified by the stockholders
of the Company on June 21, 1996.
/s/ John J. Concannon III
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John J. Concannon III
Assistant Secretary