EXHIBIT 4.3
HEMISPHERx BIOPHARMA, INC.
(FORMERLY HEM PHARMACEUTICALS CORP.)
AMENDED AND RESTATED 1993 EMPLOYEE STOCK OPTION PLAN
1. PURPOSE. The purpose of this Employee Stock Purchase Plan (the "Plan") is
to provide employees of HEM Pharmaceuticals Corp., a Delaware corporation
(the "Company"), and its subsidiaries, who wish to become stockholders of
the Company an opportunity to purchase shares of Common Stock of the
Company (the "Shares"). The Plan is intended to qualify as an "employee
stock purchase plan" within the meaning of Section 423 of the Internal
Revenue Code of 1986, as amended (the "Code").
2. ELIGIBLE EMPLOYEES. Subject to provisions of Sections 7, 8 and 9 below,
any individual who is in the full-time employment (as defined below) of
the Company or any of its subsidiaries (as defined in Section 424 (f) of
the Code) the employees of which are designated by the Company's Board of
Directors (the "Board of Directors") as eligible to participate in the
Plan, is eligible to participate in any Offering of Shares (as defined in
Section 3 below) made by the Company hereunder. Full-time employment shall
include all employees whose customary employment is:
(a) in excess of 20 hours per week; and
(b) more than five months in the relevant calendar year.
3. OFFERING DATES. From time to time the Company, by action of the Board of
Directors, will grant right to purchase Shares to employees eligible to
participate in the Plan pursuant to one or more offerings (each of which
is an "Offering") on a date or series of dates (each of which is an
"Offering Date") designated for this purpose by the Board of Directors.
4. PRICES. The Price per share for each grant of rights hereunder shall be
the lessor of:
(a) eighty-five percent (85%) of the fair market value of a Share on the
Offering Date on which such right was granted; or
(b) eighty-five percent (85%) of the fair market value of a Share on the
date such right is exercised. At its discretion, the Board of
Directors may determine a higher price for a grant of rights.
For purposes of this Plan, the term "fair market value" on any date means
(i) the average (on that date) of the high and low prices of the Company's
Common Stock on the principal national securities exchange on which the
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Common Stock is traded, if the Common Stock is then traded on a national
securities exchange; or (ii) the last reported sale price (on that date)
of the Common Stock on the NASDAQ National Market List, if the Common
Stock is not then traded on a national securities exchange; and (iii) the
average of the closing bid and asked prices last quoted (on that date) by
an established quotation service for over-the-counter securities, if the
Common Stock is not reported on the NASDAQ National Market List. If the
Company's Common Stock is not publicly traded at the time right is granted
under this Plan, "fair market value" shall mean the fair market value of
the Common Stock as determined by the Board of Directors after taking into
consideration all factors which it deems appropriate, including, without
limitation, recent sale and offer prices of the Common Stock in private
transactions negotiated at arm's length.
5. EXERCISE OF RIGHTS AND METHOD OF PAYMENT.
(a) Rights granted under the Plan will be exercisable periodically on
specified dates as determined by the Board of Directors.
(b) The method of payment for Shares purchased upon exercise or rights
granted hereunder shall be through regular payroll deductions or by
lump sum cash payment, or both, as determined by the Board of
Directors. No interest shall be paid upon payroll deductions unless
specifically provided for the Board of Directors.
(c) Any payments received by the Company from a participating employee
and not utilized for the purchase of Shares upon exercise of a right
granted hereunder shall be promptly returned to such employee by the
Company after termination of the right to which the payment relates.
6. TERM OF RIGHTS. Rights granted on any Offering Date shall be exercisable
upon the expiration of such period ("Offering Period") as shall be
determined by the Board of Directors when it authorizes the Offering,
provided that such Offering Period shall in no event be longer than
twenty-seven (27) months.
7. SHARES SUBJECT TO THE PLAN. No more than 138,240(1) Shares may be sold
pursuant to rights granted under the Plan; provided, however, that
appropriate adjustment shall be made in such number, in the number of
Shares covered by outstanding rights granted hereunder, in the exercise
price of the rights and in the maximum number of Shares which an employee
may purchase (pursuant to Section 9 below) to give effect to any mergers,
consolidations, reorganizations, recapitalizations, stock splits, stock
dividends or other relevant changes in the capitalization of the Company
occurring after the effective date of the Plan, provided that no
fractional Shares shall be subject to a right and each right shall be
adjusted downward to the nearest full Share. Any agreement of merger or
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consolidation will include provisions for protection of the then existing
rights of participating employees under the Plan. Either authorized and
unissued Shares or issued Shares heretofore or hereafter reacquired by the
Company may be made subject to rights under the Plan. If for any reason
any right under the Plan terminates in whole or in part, Shares subject to
such terminated right may again be subjected to a right under the Plan.
8. LIMITATIONS ON GRANTS.
(a) No employee shall be granted a right hereunder if such employee,
immediately after the right is granted, would own stock or rights to
purchase stock possessing five percent (5%) or more of the total
combined voting power or value of all classes of stock of the
Company, or of any subsidiary, computed in accordance with Sections
423(b)(3) and 424(d) of the Code.
(b) No employee shall be granted a right which permits his right to
purchase shares under all employee stock purchase plans of the
Company and its subsidiaries to accrue at a rate of which exceeds
twenty-five thousand dollars ($25,000) (or such other maximum as may
be prescribed from time to time by the Code) of the fair market
value of such Shares (determined at the time such right is granted)
for each calendar year in which such right is outstanding at any
time in accordance with the provisions of Section 423(b)(8) of the
Code.
(c) No right granted to any participating employee under a single
Offering shall cover more shares than may be purchased at an
exercise price equal to 10% of the compensation payable to the
employee during the Offering not taking into consideration any
changes in the employee's rate of compensation after the date the
employee elects to participate in the Offering, or such other
percentage as determined by the Board of Directors from time to
time.
9. LIMIT ON PARTICIPATION. Participation in an Offering shall be limited to
eligible employees who elect to participate in such Offering in the
manner, and within the time limitation, established by the Board of
Directors when it authorizes the offering.
10. CANCELLATION OF ELECTION TO PARTICIPATE. An employee who has elected to
participate in an Offering may, unless the employee has waived this
cancellation right at the time of such election in a manner established by
the Board of Directors, cancel such election as to all (but not part) of
the rights granted under such Offering by giving written notice of such
cancellation to the Company before the expiration of the Offering Period.
Any amounts paid by the employee for the Shares or withheld for the
purchase of Shares from the employee's compensation through payroll
deductions shall be paid to the employee, without interest, upon such
cancellation.
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11. TERMINATION OF EMPLOYMENT. Upon termination of employment for any reason,
including the death of the employee, before the date of which any rights
granted under the Plan are exercisable, all such rights shall immediately
terminate and amounts paid by the employee for the Shares or withheld for
the purchase of Shares from the employee's compensation through payroll
deductions shall be paid to the employee or to the employee's estate,
without interest.
12. EMPLOYEE'S RIGHTS AS STOCKHOLDER. No participating employee shall have any
rights as a stockholder in the Shares covered by a right granted hereunder
until such rights has been exercised, full payment has been made for the
corresponding Shares and the Share certificate is actually issued.
13. RIGHTS NOT TRANSFERABLE. Rights under the Plan are not assignable or
transferable by a participating employee and are exercisable only by the
employee.
14. LIMITS ON SALE OF STOCK PURCHASED UNDER THE PLAN. The Plan is intended to
provide shares of Common Stock for investment and not for resale. The
Company does not, however, intent to restrict or influence any employee in
the conduct of his/her own affairs. An employee may, therefore, sell stock
purchased under the Plan at any time the employee chooses, subject to the
compliance with any applicable Federal or state securities laws; provided,
however, that because of certain Federal tax requirements, each employee
agrees by entering the Plan, promptly to give the Company notice of any
such stock disposed of within two years after the date of grant of the
applicable right showing the number of such shares disposed of. THE
EMPLOYEE ASSUMES THE RISK OF ANY MARKET FLUCTUATIONS IN THE PRICE OF THE
STOCK.
15. AMENDMENTS TO OR DISCONTINUANCE OF THE PLAN. The Board of Directors may at
any time terminate or amend this Plan without notice and without further
action on the part of stockholders of the Company, provided that:
(a) no such termination or amendment shall adversely affect the then
existing rights of any participating employee;
(b) any such amendment which:
(i) increases the number of Shares subject to the Plan (subject to
the provisions of Section 7);
(ii) changes the class of persons eligible to participate under the
Plan;
or
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(iii) materially increases the benefits accruing to participants
under the Plan
shall be subject to approval of the stockholders of the Company.
16. EFFECTIVE DATE AND APPROVALS. The Plan is being adopted by the Board of
Directors on July 6, 1993 to become effective as of such time as an
initial public offering of the Company's securities occurs. The Company's
obligation to offer, sell and deliver its Shares under the Plan is subject
to the approval of its stockholders and of any governmental authority
required in connection with the authorized issuance or sale of such Shares
and is further subject to the Company receiving the opinion of its counsel
that all applicable securities laws have been complied with.
17. TERM OF PLAN. No rights shall be granted under the Plan after July 6,
2003.
18. ADMINISTRATION OF THE PLAN. The Board of Directors or any committee or
persons to whom it delegates its authority (the "Administrator") shall
administer, interpret and apply all provisions of the Plan. The
Administrator may waive such provisions of the Plan as it deems necessary
to meet special circumstances not anticipated or covered expressly by the
Plan. Nothing contained in this Section shall be deemed to authorize the
Administrator to alter or administer the provisions of the Plan in a
manner inconsistent with the provisions of Section 423 of the Code. No
member of the Administrator shall be liable for any action or
determination made in good faith with respect to the Plan or any right
granted under it.
July 6, 1993
Note (1): Plan amended to reflect stock splits consisting of a 2.17015:1 Reverse
Stock Split effected on May 9, 1994 and a 2:1 Forward Stock Split on November
30, 1994. Also includes a change in par value to $.001 per share effective June
29, 1994.