EXHIBIT 4.1
HEMISPHERx BIOPHARMA, INC.
(FORMERLY HEM RESEARCH, INC.)
AMENDED AND RESTATED
1990 STOCK OPTION PLAN
1. Administration of Plan
This plan is intended to provide for the grant of stock options to persons whose
contributions are important to the success of HEM Research, Inc. (the
"Company"). This Plan shall be administered by the Board of Directors of the
Company. The Board of Directors is authorized to interpret the Plan, the
prescribe, amend and rescind rules and regulations relating to it, and to make
all other determinations necessary or advisable for its administration. The
Board of Directors may delegate to a committee thereof any or all of its powers
and authority with respect to the administration of the Plan, and all references
herein to the Board of Directors shall be deemed to include any such committee.
2. Shares Covered by Plan
Options may be granted under the plan while the Plan is in effect for the
purchase of not more than 460,798(1) shares of the Common Stock, $.001(1) par
value ("Common Stock"), of the Company. Shares covered by unexercised options
that are no longer exercisable for any reason shall continue to be available for
issuance under options granted hereunder for purposes of applying for foregoing
limitation. Shares delivered on exercise of options may be made available from
authorized and unissued stock or from stock held in the Treasury of the Company.
3. Eligibility
The Board of Directors may grant stock options under the Plan to employees,
directors and officers of the Company and to consultants, advisors and other
persons whose contributions are important to the success of the Company,
provided that bonafide services shall be rendered by such consultants other than
in connection with the offer and sale of securities in a capital-raising
transaction.
4. Grant of Options
The recipients of options granted under the Plan, the number of shares to be
covered by each option, and the exercise price, vesting terms, if any, duration
and other terms of each option (not inconsistent with the Plan) shall be
determined by the Board of Directors.
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5. Option Agreements
Each person to whom an option is granted shall enter into a written agreement
with the Company setting forth the terms and conditions of the option granted to
him.
6. Duration of Options
No option granted under the Plan shall be exercisable more than ten years and
one month from the date as of which the option agreement is executed.
7. Rights of a Stockholder
An optionee shall have no rights as a stockholder with respect to any shares
covered by his options until he shall have become the holder of record of such
shares, and no adjustment shall be made, except adjustments pursuant to section
8 hereof, for dividends (ordinary or extraordinary whether in cash, securities
or other property) or distributions or other rights in respect of such shares
for which the record date is prior to the date on which he shall have become the
holder of record thereof.
8. Effect of Change in Stock Subject to the Plan
If there is any change in the shares of Common Stock of the Company through the
declaration of stock dividends or through recapitalization resulting in stock
split-ups or combinations or exchanges of shares or otherwise, the number of
shares available for option, the exercise price of outstanding options, and the
number of shares subject to any option shall be appropriately adjusted by the
Board of Directors, and in their discretion, in such cases, fractional parts of
shares may be disregarded.
9. Amendment and Discontinuance
The Board of Directors may from time to time alter or suspend and at any time
discontinue the Plan. However, no action of the Board of Directors may alter or
impair an optionee's rights under any outstanding option previously granted
under the Plan without the consent of the holder of the option.
10. Termination Date
The Plan shall remain in effect until terminated by the Board of Directors.
Date: October 23, 1989
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Note (1): Plan amended to reflect stock splits since 1990 consisting of a 10:1
Reverse Stock Split effected in 1992, a 2.17015:1 Reverse Stock Split effected
on May 9, 1994 and a 2:1 Forward Stock Split on November 30, 1994. Also reflects
a change in par value to $.001 per share effective June 29, 1994.