GPC Biotech AG
2006 INCENTIVE STOCK OPTION PLAN
EFFECTIVE AS OF MAY 24, 2006
1. PURPOSES.
(a) The purpose of this Plan is to provide a means by which
selected Employees and Directors of GPC Biotech Inc. (the
"Subsidiary"), a wholly owned subsidiary of GPC Biotech AG,
Munich/Germany (the "Company") may be given an opportunity to
benefit from increases in value of the stock of the Company
through the granting of (i) Incentive Stock Options, and (ii)
Nonstatutory Stock Options, all as defined below. The Plan
does not provide for the granting of stock appreciation rights
or restricted stock.
(b) The Company, by means of this Plan, seeks to retain the
services of persons who are now Employees or Directors of its
Subsidiary, to secure and retain the services of such persons
and to provide incentives for such persons to exert maximum
efforts for the success of the Company and its Subsidiary.
(c) The Company intends that the Stock Option Grants issued
under this Plan shall, in the discretion of the Board of
Directors ("Vorstand") and in coordination with the
Supervisory Board ("Aufsichtsrat") of the Company be Options
granted pursuant to Section 6 hereof, including Incentive
Stock Options and Nonstatutory Stock Options. All Options
shall be separately designated Incentive Stock Options or
Nonstatutory Stock Options at the time of grant, and in such
form as required pursuant to Section 6, and a separate
certificate or certificates will be issued for each option
grant.
2. DEFINITIONS.
(a) "Affiliate" means any subsidiary corporation of the Company,
whether now or hereafter existing, as defined in Section
424(f) of the Code, including GPC Biotech, Inc., a Delaware
corporation with its offices in Waltham (Massachusetts) and
Princeton (New Jersey).
(b) "Aktiengesetz" (abbr.: AktG) means the German Stock
Corporation Act.
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(c) "Aufsichtsrat" means the Supervisory Board of the Company.
(d) "Code" means the United States Internal Revenue Code of 1986,
as amended.
(e) "Company" means GPC Biotech AG, a German Aktiengesellschaft
(stock corporation) with its seat in Planegg/Martinsried
(Germany).
(f) "Continuous Status as an Employee or Director" means the
employment or relationship as an Employee or a Director is not
interrupted or terminated. The Aufsichtsrat, in its sole
discretion, may determine whether Continuous Status as an
Employee or a Director shall be considered interrupted in the
case of: (i) any leave of absence approved by the Vorstand,
including sick leave, military leave, or any other personal
leave; or (ii) transfers between locations of the Company or
between the Company and the Affiliates or their successors.
(g) "Director" means a member of the board of directors of an
Affiliate of the Company.
(h) "Employee" means any person, employed by the Company or any
Affiliate of the Company. Neither service as a Director nor
payment of a director's fee by the Company shall be sufficient
to constitute "employment" by the Company.
(i) "Exchange Act" means the U.S. Securities Exchange Act of 1934,
as amended.
(j) "Fair Market Value" means, as of any date, the value of the
ordinary bearer shares of the Company determined as follows,
and in each case in a manner consistent with the Code, the
Fair Market Value of an ordinary bearer shall be equivalent to
the average price at which the Company's no-par shares are
traded at XETRA's final auction on the Frankfurt stock
exchange during the last five stock exchange trading days
prior to the granting of the Options, at least, however, to
the share in the capital stock (pro rata amount) attributed to
one share of GPC Biotech AG.
(k) "Incentive Stock Option" means an Option intended to
qualify as an incentive stock option within the meaning of
Section 422 of the Code and the regulations promulgated
thereunder.
(l) "Nonstatutory Stock Option" means an Option not intended to
qualify as an Incentive Stock Option.
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(m) "Option" means a stock option granted pursuant to the Plan.
(n) "Optionee" means any Employee or Director who holds an
outstanding Option.
(o) "Plan" means the 2006 Incentive Stock Option Plan.
(p) "Redomociling" shall occur only in the event that (i) the
Company has a class of equity securities registered pursuant
to Section 12 of the Exchange Act, and (ii) the Company no
longer qualifies as a "foreign private issuer" under
applicable US securities laws.
(q) "Rule 16b-3" means Rule 16b-3 of the Exchange Act or any
successor to Rule 16b-3, as in effect when discretion is being
exercised with respect to the Plan.
(r) "share(s)" means the Company's ordinary bearer shares and,
unless the context otherwise requires, its American Depositary
Receipts evidencing American Depositary Shares, each
representing one ordinary bearer share.
(s) "Stock Option Grant" means any Option right granted under the
Plan.
(t) "Stock Option Agreement" means a written agreement between
the Company and a holder of a Stock Option Grant evidencing
the terms and conditions of an individual Stock Option Grant.
Each Stock Option Agreement shall be subject to the terms and
conditions of the Plan.
(u) "Subsidiary" means any affiliated corporation of the Company,
whether now or hereafter existing, as defined in Section
424(f) of the Code, including GPC Biotech Inc., a Delaware
corporation with offices in Waltham (Massachusetts) and
Princeton (New Jersey).
(v) "Vorstand" means the Management Board of the Company.
3. ADMINISTRATION.
(a) The Plan shall be administered by the Vorstand in
accordance with the respective resolutions of the Company's
stockholders and, where applicable, in coordination with the
Aufsichtsrat and internal guidelines of the Company.
(b) Notwithstanding subparagraph (a) above, the Vorstand shall
have the power subject to and within the limitations of the
express provisions of the Plan:
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(1) To determine from time to time which of the persons
eligible under the Plan shall be granted Stock
Option Grants; when and how each Stock Option Grant
shall be granted; whether a Stock Option Grant will
be an Incentive Stock Option, a Nonstatutory Stock
Option or a combination of the foregoing; the
provisions of each Stock Option Grant granted (which
need not be identical), including the time or times
when a person shall be permitted to receive stock
pursuant to a Stock Option Grant, whether a person
shall receive ordinary bearer shares or American
Despositary Receipts and the number of shares with
respect to which a Stock Option Grant shall be
granted to each such person.
(2) To construe and interpret the Plan and Stock Option
Grants granted under it, and to establish, amend and
revoke rules and regulations for its administration.
The Vorstand, in the exercise of this power, may
correct any defect, omission or inconsistency in the
Plan or in any Stock Option Agreement, in a manner
and to the extent it shall deem necessary or
expedient to make the Plan fully effective. All
decisions by the Vorstand shall be made in the
Vorstand's sole discretion and shall be final and
binding on all persons having or claiming any
interest in the Plan or in any Option. No Director
or person acting pursuant to the authority delegated
by the Vorstand shall be liable for any action or
determination relating to or under the Plan made in
good faith.
(3) To amend the Plan or a Stock Option Grant as
provided in Section 11.
4. SHARES SUBJECT TO THE PLAN.
(a) Subject to the respective resolutions of the Company's
stockholders as well as subject to the provisions of Section
10 relating to adjustments upon changes in stock, the maximum
number of shares that may be issued pursuant to Stock Option
Grants made under the Plan may not exceed 415,000, which is
the corresponding number of shares that can be issued
according to the existing conditional capital which, has been
be created by a resolution of the Company's stockholders
according to subparagraph (b). If any Stock Option Grant shall
for any reason expire or otherwise terminate, in whole or in
part, without having been exercised in full, the stock not
acquired under such Stock Option Grant shall revert to and
again become available for issuance under the Plan subject,
however, in the case of Incentive Stock Options, to any
limitation required under the Code.
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(b) The stock subject to the Plan may be new shares which will be
issued by way of capital increase using up conditional capital
which has been created by a resolution of the Company's
stockholders on May 24, 2006 in order to satisfy the Company's
obligations under the Plan. The provisions of the
Aktiengesetz, in particular Sections 192 para. 2 cif. 3, 193
para. 2 cif. 4, AktG, have to be obeyed. However, an exercised
Option subject to the Plan may be satisfied with reacquired
shares, bought on the market or otherwise in accordance with
Section 71 AktG.
5. ELIGIBILITY.
(a) Incentive Stock Options may be granted only to Employees and
shall be subject to and construed consistently with the
requirements of Section 422 of the Code. Stock Option Grants
other than Incentive Stock Options may be granted only to
Employees and Directors. The Company shall have no liability
to an Employee, or any other party, if an Option (or any part
thereof) that is intended to be an Incentive Stock Option is
not an Incentive Stock Option.
(b) No Employee shall be eligible for the grant of an Incentive
Stock Option if, at the time of grant, such person owns (or is
deemed to own pursuant to Section 424(d) of the Code) stock
possessing more than ten percent (10%) of the total combined
voting power of all classes of stock of the Company or of any
of its Affiliates (a "10% Stockholder") unless the exercise
price of such Option is at least one hundred ten percent
(110%) of the Fair Market Value of such stock at the date of
grant and the Option is not exercisable after the expiration
of five (5) years from the date of grant.
(c) Subject to the provisions of Section 10 relating to
adjustments upon changes in stock, no person shall be eligible
to be granted Options covering more than one hundred thousand
(100,000) of the Company's shares in any calendar year. This
Section 5(c) shall not apply until the Company is Redomiciled.
6. OPTION PROVISIONS.
Each Option shall be evidenced by a written instrument in such form as
the Vorstand shall determine and shall contain such terms and
conditions as the Vorstand in co-ordination with the Aufsichtsrat shall
deem appropriate. The provisions of separate Options need not be
identical, but each Option shall include (through incorporation of
provisions hereof by reference in the Option or otherwise) the
substance of each of the following provisions:
(a) Term. The Options may be offered to the Optionees during the
last fifteen working days of each calendar month (acquisition
period pursuant to Section 193 Para. 2 No. 4 AktG).
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Each Option shall be exercisable at such times and subject to
such terms as the Vorstand may specify in the applicable Stock
Option Grant, provided, however, that no Option shall be
exercisable after the expiration of ten (10) years from the
date it was granted.
(b) Price. The Vorstand shall establish the exercise price at
the time each Option is granted and shall specify it in the
applicable Stock Option Grant, provided however, that, except
as provided in Section 5(b), the exercise price of each
Incentive Stock Option shall be not less than one hundred
percent (100%) of the Fair Market Value.
(c) Consideration. According to applicable German Law, the
exercise price of stock acquired pursuant to an Option can
only be paid to the Company, at the latest, when the Option is
exercised either (i) in cash (EURO), or (ii) by money transfer
onto an account of the Company with a (German or
international) bank residing in Germany. Any other means of
payment or payment in kind is prohibited according to Section
199 para. 1, 54 para. 3, 36 para. 2 AktG.
(d) Transferability. An Incentive Stock Option shall not be
transferable except by will or by the laws of descent and
distribution, and shall be exercisable during the lifetime of
the person to whom the Option is granted only by such person.
Notwithstanding the foregoing, the person to whom an Incentive
Stock Option Agreement is granted may, by delivering written
notice to the Company, in a form satisfactory to the Company,
designate a third party who, in the event of the death of the
Optionee, shall thereafter be entitled to exercise the Option.
(e) Vesting. The total number of shares of stock subject to an
Option may, but need not, be allotted in periodic installments
(which may, but need not, be equal). The Stock Option
Agreement may provide that from time to time during each of
such installment periods, the Option, notwithstanding Section
6(i), may become exercisable ("vest") with respect to some or
all of the shares allotted to that period, and may be
exercised with respect to some or all of the shares allotted
to such period and/or any prior period as to which the Option
became vested but was not fully exercised. The Option may be
subject to such other terms and conditions on the time or
times when it may be exercised (which may be based on
performance or other criteria according to the then applicable
resolution of the Company's stockholders) as the Vorstand in
co-ordination with the Aufsichtsrat may deem appropriate.
(f) Termination of Employment or Relationship as a Director. In
the event an Optionee's Continuous Status as an Employee or
Director terminates (other than upon the Optionee's death or
disability, as defined below), the Optionee may exercise his
or her Option to the extent that the Optionee was entitled to
exercise it according
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to Sections 6(e) and 6(i) at the date of termination but only
within such period of time ending on the earlier of (i) the
date three (3) months after the termination of the Optionee's
Continuous Status as an Employee or Director (or such longer
or shorter period as specified in the Stock Option Agreement)
or (ii) the expiration of the term of the Option as set forth
in the Stock Option Agreement. However, notwithstanding the
foregoing, should the date of termination be prior to that of
the expiration of the two-year waiting period mentioned in
Section 6(i), the Optionee may exercise his or her Option at
the date of expiration of such waiting period but only within
three (3) months after the expiration of the two-year waiting
period; provided, however, that, unless otherwise provided in
the Code or the Treasury regulations thereunder, any such
Option which was intended to be an Incentive Stock Option
which is exercised at any time after three (3) months of the
termination of the Optionee's Continuous Status as an Employee
shall no longer qualify as an Incentive Stock Option, but
shall be treated as, and have the consequences of, a
Nonstatutory Stock Option. If the Optionee does not exercise
his or her Option within the time required, the Option shall
terminate, and the shares covered by such Option shall revert
to and again become available for issuance under the Plan
subject, however, in the case of Incentive Stock Options to
any limitation required under the Code.
(g) Disability of Optionee. In the event an Optionee's Continuous
Status as an Employee or Director terminates as a result of
the Optionee's disability (within the meaning of Section
22(e)(3) of the Code), the Optionee may exercise his or her
Option to the extent that the Optionee was entitled to
exercise it according to Sections 6(e) and 6(i) at the date of
termination, but only within such period of time ending on the
earlier of (i) the date three (3) months following such
termination (or such longer or shorter period as specified in
the Stock Option Agreement ) or (ii) the expiration of the
term of the Option as set forth in the Stock Option Agreement;
provided, however, should the date of termination be prior to
that of the expiration of the two-year waiting period
mentioned in Section 6(i), the Optionee may exercise his or
her Option at the date of expiration of such waiting period
but only within three (3) months after the expiration of the
two-year waiting period; provided further, however, that,
unless otherwise provided in the Code or the Treasury
regulations thereunder, any such Option which was intended to
be an Incentive Stock Option which is exercised at any time
after one year of the termination of the Optionee's Continuous
Status as an Employee shall no longer qualify as an Incentive
Stock Option but shall be treated as, and have the
consequences of, a Nonstatutory Stock Option. If, at the date
of termination, the Optionee is not entitled to exercise his
or her entire Option, the shares covered by the unexercisable
portion of the Option shall revert to and again become
available for issuance under the Plan subject, however, in the
case of Incentive Stock Options to any limitations under the
Code. If, after termination, the Optionee does not exercise
his or her Option within the time
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specified herein, the Option shall terminate, and the shares
covered by such Option shall revert to and again become
available for issuance under the Plan subject, however, in the
case of Incentive Stock Options to any limitations under the
Code.
(h) Death of Optionee. In the event of the death of an Optionee
during, or within a period specified in the Option after the
termination of, the Optionee's Continuous Status as an
Employee or Director, the Option may be exercised to the
extent the Optionee was entitled to exercise it according to
Sections 6(e) and 6(i)at the date of death by the Optionee's
estate, by a person who acquired the right to exercise the
Option by bequest or inheritance or by a person designated to
exercise the Option upon the Optionee's death pursuant to
Section 6(d), but only within the period ending on the earlier
of (i) the date six (6) months following the date of death (or
such longer or shorter period as specified in the Stock Option
Agreement) or (ii) the expiration of the term of such Option
as set forth in the Stock Option Agreement. However, should
the date of termination be prior to that of the expiration of
the two-year waiting period mentioned in Section 6(i), the
Optionee may exercise his or her Option at the date of
expiration of such waiting period but only within the later of
six (6) months after the expiration of the two-year waiting
period; provided further, however, that, unless otherwise
provided in the Code or the Treasury regulations thereunder,
any such Option which was intended to be an Incentive Stock
Option which is exercised at any time after one year of the
termination of the Optionee's Continuous Status as an Employee
shall no longer qualify as an Incentive Stock Option but shall
be treated as, and have the consequences of, a Nonstatutory
Stock Option. If, at the time of death, the Optionee was not
entitled to exercise his or her entire Option, the shares
covered by the unexercisable portion of the Option shall
revert to and again become available for issuance under the
Plan subject, however, in the case of Incentive Stock Options
to any limitations under the Code. If, after death, the Option
is not exercised within the time specified herein, the Option
shall terminate, and the shares covered by such Option shall
revert to and again become available for issuance under the
Plan subject, however, in the case of Incentive Stock Options
to any limitations under the Code.
(i) Exercise. Before any Option subject to the Plan may be
exercised according to Section 193 para. 2 cif. 4 AktG a
mandatory minimum waiting period of two years, counted as of
the date of the Stock Option Grant, has to be observed. No
shares shall be issued before the aforementioned waiting
period has expired.
The stock options may only be exercised if the Closing Price
develops better than a reference index (performance goal
pursuant to Section 193 Para. 2 No. 4 of the German Stock
Corporation Act).
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Closing Price is the price of one GPCB Share in the XETRA
closing auction on the Frankfurt Stock Exchange.
Reference index shall be the stock index TecDax of the
Frankfurt Stock Exchange (the "Price Index").
The Price Index as well as the Closing Price on the date on
which the stock options are issued shall serve as the starting
point for the performance measurement. The stock options may
only be exercised if the Closing Price has developed better
than the Price Index. The relevant comparison date for this
shall be the date four weeks prior to the exercise of the
stock options.
Options may be exercised by submitting a written notice of
exercise to the Company signed by the proper person or by any
other form of notice approved by the Vorstand together with
payment in full as specified in Section 6(c) for the number of
shares for which the Option is exercised.
Options may not be exercised from the date on which the
Company submits an offer to its shareholders for the
subscription of new shares or convertible bonds with
conversion or option rights by written notice to all
shareholders or through an announcement in the publications
named in the Company's Articles of Association or in a
mandatory stock exchange publication of the Frankfurt Stock
Exchange until the end of the last day of the subscription
period.
Furthermore, the Options may, each time, only be exercised
within a period of six weeks after publication of the
quarterly reports or annual financial statements (exercise
period pursuant to Sect. 193 Para. 2 No. 4 AktG). As a matter
of principle, exercise of the Options shall be excluded from
December 24 to December 31 of each calendar year.
(j) Public Offering. Each Optionee, for as long as any
shareholder of the Company who had previously been an
Optionee, may be restricted from selling shares in connection
with any public offering of shares by the Company, subject to
the same restrictions should he exercise his Options during
the period within which such former Optionee is so restricted.
(k) Vorstand Discretion. Except as otherwise provided in the
Plan, each Stock Option Grant may be made alone or in relation
to any other Stock Option Grant. The terms of each Stock
Option Grant need not be identical, and the Vorstand need not
treat Optionees uniformly.
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7. COVENANTS OF THE COMPANY.
The Company shall seek to obtain from each regulatory commission or
agency having jurisdiction over the Plan such authority as may be
required to issue and sell shares of stock upon exercise of the Stock
Option Grant; provided, however, that this undertaking shall not
require the Company to register under the Securities Act of 1933, as
amended (the "Securities Act") either the Plan, any Stock Option Grant
or any stock issued or issuable pursuant to any such Stock Option
Grant. If, after reasonable efforts, the Company is unable to obtain
from any such regulatory commission or agency the authority which
counsel for the Company deems necessary for the lawful issuance and
sale of stock under the Plan, the Company shall be relieved from any
liability for failure to issue and sell stock upon exercise of such
Stock Option Grants unless and until such authority is obtained.
8. USE OF PROCEEDS FROM STOCK.
Proceeds from the sale of stock pursuant to Stock Option Grants shall
constitute capital reserves of the Company.
9. MISCELLANEOUS.
(a) The Vorstand in coordination with the Aufsichtsrat shall have
the power to accelerate the time at which a Stock Option Grant
may first be exercised or the time during which a Stock Option
Grant or any part thereof will vest pursuant to Section 6(e),
notwithstanding the provisions in the Stock Option Grant
stating the time at which it may first be exercised or the
time during which it will vest.
(b) Neither an Employee or Director nor any person to whom a Stock
Option Grant is transferred under Section 6(d) shall be deemed
to be the holder of, or to have any of the rights of a holder
with respect to, any shares subject to such Stock Option Grant
unless and until such person has satisfied all requirements
for exercise of the Stock Option Grant pursuant to its terms.
(c) Nothing in the Plan or any instrument executed or Stock Option
Grant granted pursuant thereto shall confer upon any Employee
or Director any right to continue in the employment of the
Company or any Affiliate (or to continue acting as a Director)
or shall affect the right of the Company or any Affiliate to
terminate the employment of any such person with or without
cause.
(d) For so long as the Code provides, to the extent that the
aggregate Fair Market Value (determined at the time of grant)
of stock with respect to which Incentive Stock Options are
exercisable for the first time by any Option holder during any
calendar
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year under all stock plans of the Company and its Affiliates
exceeds one hundred thousand dollars ($100,000), the Options
or portions thereof which exceed such limit (according to the
order in which they were granted) shall be treated as
Nonstatutory Stock Options.
(e) The Company may require any person to whom an Option is
granted, or any person to whom an Option is transferred
pursuant to Section 6(d), as a condition of exercising or
acquiring stock under any Stock Option Grant,(i) to give
written assurances satisfactory to the Company as to such
person's knowledge and experience in financial and business
matters and/or to employ a purchaser representative reasonably
satisfactory to the Company who is knowledgeable and
experienced in financial and business matters, and that he or
she is capable of evaluating, alone or together with the
purchaser representative, the merits and risks of exercising
the Stock Option Grant; and (ii) to give written assurances
satisfactory to the Company stating that such person is
acquiring the stock subject to the Stock Option Grant for such
person's own account and not with any present intention of
selling or otherwise distributing the stock. The foregoing
requirements, and any assurances given pursuant to such
requirements, shall be inoperative if (i) the issuance of the
shares upon the exercise or acquisition of stock under the
Stock Option Grant has been registered under a then currently
effective registration statement under the Securities Act, or
(ii) as to any particular requirement, a determination is made
by counsel for the Company that such requirement need not be
met in the circumstances under the then applicable securities
laws. The Company may, upon advice of counsel to the Company,
place legends on stock certificates issued under the Plan as
such counsel deems necessary or appropriate in order to comply
with applicable securities laws, including, but not limited
to, legends restricting the transfer of the stock.
(f) To the extent provided by the terms of a Stock Option
Agreement, the person to whom an Option is granted must
satisfy any federal, state or local tax withholding obligation
relating to the exercise or acquisition of stock under the
Plan by any of the following means or by a combination of such
means: (i) tendering a cash payment; (ii) authorizing the
Company or Subsidiary to withhold shares from the shares
otherwise issuable to the participant as a result of the
exercise or acquisition of stock under the Plan; or (iii)
delivering to the Company or Subsidiary owned and unencumbered
shares of the Company. Payment of such withholding obligation
shall be made no later than the date of the event creating the
tax liability.
10. ADJUSTMENTS UPON CHANGES IN STOCK.
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(a) In the event of a merger of the Company with and into another
entity where the Company is not the surviving entity
(Verschmelzung durch Aufnahme), a change in the legal form of
the Company (Umwandlung), a change in the notional nominal
value of the shares of stock in the Company and similar
measures leading to the cancellation or conversion of the
shares of stock underlying the Options, each outstanding
Option shall be substituted by the right to purchase at the
exercise price a specific number of shares of stock or other
interests in the Company or its successor entity (calculated
on the basis of the Fair Market Value at the time of any such
change) substituting the shares of stock in the Company. The
remaining provisions of this Plan shall remain unaffected.
(b) In the event of a capital decrease by means of amalgamating
the ordinary shares in the Company (Kapitalherabsetzung durch
Zusammenlegung, ss. 222(4) AktG) or by means of cancellation
(Einziehung) of ordinary shares (ss. 237 AktG), the
subscription ratio (as specified in the applicable Stock
Option Grant) shall be adjusted by multiplying it with the
coefficient resulting from the division of the number of
shares of stock after such capital decrease by the number of
shares of stock prior to such capital decrease. Fractional
shares of stock resulting from any such capital decrease will
not be delivered upon exercise of the Options.
(c) In case of a capital increase out of retained earnings by the
Company, any existing conditional capital will be increased
according to Section 218 AktG in the same ratio as the
Company's share capital, instead of a deduction of the
exercise price. The right of an Option holder to purchase
stock of the Company, at the point in time of exercise, will
increase in the same ratio as the Company's share capital
increase.
11. AMENDMENT OF THE PLAN AND STOCK OPTION GRANTS.
(a) The Vorstand in coordination with the Aufsichtsrat at any
time, and from time to time, may amend the Plan and/or some or
all outstanding Stock Option Grants granted under the Plan.
However, except as provided in Section 10 relating to
adjustments upon changes in stock, no amendment shall be
effective unless approved by the stockholders of the Company
to the extent stockholder approval is necessary for the Plan
to satisfy the requirements of the Aktiengesetz as well as of
Section 422 of the Code, or any security laws or any Nasdaq or
securities exchange listing requirements.
(b) The Vorstand in coordination with the Aufsichtsrat may in its
discretion submit any other amendment to the Plan for
stockholder approval, including, but not limited to,
amendments to the Plan intended to satisfy the requirements of
the Aktiengesetz and/or Section 162(m) of the Code and the
regulations promulgated thereunder
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regarding the exclusion of performance-based compensation from
the limit on corporate deductibility of compensation paid to
certain executive officers.
(c) It is expressly contemplated that the Vorstand in coordination
with the Aufsichtsrat may amend the Plan in any respect the
Vorstand deems necessary or advisable to provide eligible
Employees or Directors with the maximum benefits provided or
to be provided under the provisions of the Code and the
regulations promulgated thereunder relating to Incentive Stock
Options and/or to bring the Plan and/or Incentive Stock
Options granted under it into compliance therewith.
(d) Rights and obligations under any Option granted before
amendment of the Plan shall not be impaired by any Plan
amendment unless the Company requests the consent of the
person to whom the Stock Option Grant was granted and such
person consents in writing.
(e) The Vorstand in coordination with the Aufsichtsrat at any
time, and from time to time, may amend the terms of any one or
more Stock Option Grant; provided, however, that the rights
and obligations under any Stock Option Grant shall not be
impaired by any such amendment unless (i) the Company requests
the consent of the person to whom the Stock Option Grant was
granted and (ii) such person consents in writing.
12. TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Vorstand in coordination with the Aufsichtsrat may suspend
or terminate the Plan at any time. Unless sooner terminated,
the Plan shall terminate on the last business day of May 31,
2010. No Options may be granted under the Plan while the Plan
is suspended or after it is terminated but any outstanding
option may be exercised ten (10) years from the grant date.
(b) Rights and obligations under any Option granted while the Plan
is in effect shall not be impaired by suspension or
termination of the Plan, except with the consent of the person
to whom the Stock Option Grant was granted.
13. EFFECTIVE DATE OF PLAN.
The Plan is effective as of the approval of the shareholders on June 8,
2005; provided, however, that, following a Redomociling, no Stock
Option Grant granted to an Optionee designated by the Vorstand as
subject to Section 162(m) of the Code shall become exercisable, vested
or realizable, as applicable to such Stock Option Grant, unless and
until the Plan has been approved by the Company's stockholders to the
extent stockholder
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approval is required by Section 162(m) in the manner required under
Section 162(m) (including the vote required under Section 162(m)).
Martinsried/Planegg, May 24, 2006
GPC Biotech AG
Der Vorstand