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EXHIBIT 10.4
[FORM OF 2003 NON-EMPLOYEE DIRECTOR COMPENSATION PLAN -
SUBJECT TO ADDITIONAL REVIEW]
ARTICLE I
PURPOSE OF PLAN
The 2003 Non-Employee Director Compensation Plan (the "Plan") of Vaso
Active Pharmaceuticals, Inc., a Delaware corporation (the "Company") effective
as of August 22, 2003, is established for present and future non-employee
directors of the Company. The Plan is intended to advance the best interests of
the Company and its stockholders by improving the Company's ability to attract
and retain highly qualified individuals to serve as directors of the Company by
allowing them to acquire an ownership interest in the Company and thereby
encouraging them to contribute to the success of the Company and to build and
strengthen the commonality of interest between directors and stockholders.
ARTICLE II
DEFINITIONS
For purposes of the Plan, except where the context clearly indicates
otherwise, the following terms shall have the meanings set forth below:
"BOARD" shall mean the Board of Directors of the Company.
"CODE" shall mean the Internal Revenue Code of 1986, as amended, and any
successor statute.
"COMMON STOCK" shall mean shares of the Company's Class A Common Stock, par
value $0.0001 per share, or if the outstanding shares of Common Stock are
hereafter changed into or exchanged for different shares or securities of the
Company, such other shares or securities.
"DISABILITY" shall mean the inability, due to illness, accident, injury,
physical or mental incapacity or other disability, of any Participant to carry
out effectively his duties and obligations to the Company or to participate
effectively and actively as a member of any committee of the Board for a period
of at least 90 consecutive days or for shorter periods aggregating at least 120
days (whether or not consecutive) during any twelve-month period, as determined
in the reasonable judgment of the Board.
"FAIR MARKET VALUE" of the Common Stock at any date, shall be the price per
share equal to the last reported closing price, at the later of 4:00 p.m., New
York time at the close of business on such date, or, in the case no such
reported sale takes place on such date, the average of the last reported sales
price for the last three trading days before such date, in either case, as (a)
officially
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reported by (i) the national securities exchange on which the Common Stock is
listed, or (ii) if not listed on a national securities exchange, the Nasdaq
National Market or the Nasdaq SmallCap Market, as applicable, or (b) if not
listed on the Nasdaq National Market or the Nasdaq SmallCap Market, based on the
average of the highest bid and lowest asked prices in the domestic
over-the-counter market as reported by the National Quotation Bureau, Inc. or
any similar organization, or (c) if not reported by the National Quotation
Bureau, Inc. or any similar organization, as determined by the Board in good
faith.
"INCENTIVE STOCK OPTIONS" shall have the meaning as defined in Section 422
of the Code.
"INDEPENDENT THIRD PARTY" means any Person who, immediately prior to the
contemplated transaction, does not own in excess of 5% of the shares of the
Company's Common Stock on a fully-diluted basis (a "5% Owner") who is not
controlling, controlled by or under common control with any such 5% Owner and
who is not the spouse or descendent (by birth or adoption) of any such 5% Owner
or a trust for the benefit of such 5% Owner and/or such other Persons.
"NON-EMPLOYEE DIRECTOR" means any member of the Board who is not also an
employee of the Company or any of its Subsidiaries or of any affiliate of the
Company.
"NONQUALIFIED STOCK OPTIONS" shall mean Stock Options other than Incentive
Stock Options.
"PARTICIPANT" shall mean any present and future Non-Employee Director of
the Company.
"PERSON" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"RESTRICTED STOCK AGREEMENT" shall have the meaning set forth in Article V.
"RESTRICTED STOCK GRANTS" shall have the meaning set forth in Article IV.
"SALE OF THE COMPANY" means the sale of the Company to an Independent Third
Party or group of Independent Third Parties pursuant to which such party or
parties acquire (i) capital stock of the Company possessing the voting power
under normal circumstances to a majority of the Board (whether by merger,
consolidation or sale or transfer of the capital stock) or (ii) all or a
majority of the Company's assets determined on a consolidated basis.
"STOCK OPTIONS" mean Incentive Stock Options and Nonqualified Stock Options
taken together.
"SUBSIDIARY" means, with respect to any Person, any corporation, limited
liability Company partnership, association or other business entity of which (i)
if a corporation, a majority of the total voting power of shares of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association or business entity, a majority of
the limited liability company,
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partnership or other similar ownership interest thereof is at the time owned or
controlled, directly or indirectly, by any Person or one or more Subsidiaries of
that Person or a combination thereof. For purposes hereof, a Person or Persons
shall be deemed to have a majority ownership interest in a limited liability
company, partnership, association or other business entity if such Person or
Persons shall be allocated a majority of the limited liability company,
partnership, association or other business entity gains or losses or shall be or
control the managing member. director or general partner of such limited
liability company, partnership, association or other business entity.
ARTICLE III
ADMINISTRATION
The Plan shall be administered by the Board. Subject to the limitations of
the Plan, the Bpard shall have the sole and complete authority to: (i) determine
which Participants receive Incentives, the types of Incentives they receive
under the Plan, the number of shares of Common Stock covered by Incentives
granted under the Plan and the other terms and conditions of such Incentives,
(ii) grant to any Participant Incentives at any time prior to the termination of
this Plan in such quantity, at such price, on such terms and subject to such
conditions that are consistent with this Plan and established by the Board from
time to time, (iii) impose such limitations, restrictions and conditions upon
the grants of any Incentives to any Participant as it shall deem appropriate,
(iv) interpret the Plan and adopt, amend and rescind administrative guidelines
and other rules and regulations relating to the Plan, (v) correct any defect or
omission or reconcile any inconsistency in the Plan or in any grants of
Incentives awarded hereunder and (vi) make all other determinations and take all
other actions necessary or advisable for the implementation and administration
of the Plan. Determinations by the Board under the Plan including, without
limitation, determinations of the form, amount and timing of Incentives, the
terms and provisions of Incentives, the terms and provisions of Incentives and
the writings evidencing Incentives, need not be uniform and may be made
selectively among Participants who receive Incentives hereunder, whether nor not
such Participants are similarly situated. The Board's determinations on matters
within its authority shall be conclusive and binding upon the Participants, the
Company and all other Persons. All expenses associated with the administration
of the Plan shall be borne by the Company. The Board may, to the extent
permissible by law, delegate any of its authority hereunder to such persons as
it deems appropriate.
ARTICLE IV
INCENTIVES AND SHARES ELIGIBLE FOR INCENTIVES
4.1 GRANT OF INCENTIVES. Except as otherwise determined by the Board as
set forth in resolutions duly adopted by the Board from time to time, each
Person who becomes a Non-Employee Director for the first time after June 1, 2003
shall be granted Incentives in the form of Incentive Stock Options to purchase
20,000 of Common Stock at an exercise price equal to the Fair Market Value on
the date of grant. Incentives under the Plan may be granted in any one or a
combination of (a) Restricted Stock Grants, (b) Incentive Stock Options, (c)
Nonqualified Stock Options and (d) Stock Appreciation Rights (collectively
"Incentives"). All Incentives shall be
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subject to the terms and conditions set forth herein and to such other terms and
conditions as may be established by the Board.
4.2 NUMBER OF SHARES OF COMMON STOCK. The number of shares of Common
Stock with respect to which Incentives may be granted under the Plan and which
may be awarded as Restricted Stock Grants, issued upon the exercise of Incentive
Stock Options and Nonqualified Stock Options and all other grants of shares of
Common Stock under the Plan, shall not exceed, in the aggregate, 300,000;
PROVIDED THAT the type and the aggregate number of shares of Common Stock which
may be granted under the Plan shall be subject to adjustment in accordance with
the provisions of paragraph 4.3 below, and FURTHER PROVIDED THAT to the extent
any shares of Common Stock that are not purchased or awarded under an Incentive
that has lapsed, expired, terminated or been canceled or any shares of Common
Stock that have been repurchased by the Company or forfeited in any manner,
shall again be available under the Plan. The shares of Common Stock available
under the Plan may be either authorized and unissued shares, treasury shares or
a combination thereof, as the Board shall determine.
4.3 ADJUSTMENTS. In the event of a reorganization, recapitalization,
stock dividend or stock split, or combination or other change, identified by the
Board, in the Common Stock, the Board may, make such adjustments, if any, in (i)
the number and type of shares authorized for issuance by the Plan, (ii) the
number and type of shares in respect of outstanding Incentives, (iii) the
exercise or option price of Stock Options, (iv) the repurchase or other prices
specified in applicable Restricted Stock Agreement(s) and (v) the fair market
value of Stock Appreciation Rights; PROVIDED THAT fractions of a share will be
rounded down to the nearest whole share (other than for Incentive Stock
Options), all as may be determined to be appropriate and equitable in the sole
discretion of the Board.
ARTICLE V
RESTRICTED STOCK GRANTS
5.1 RESTRICTED STOCK GRANTS. The Board may award shares of Common Stock
to Participants, which shares shall be subject to the following terms and
conditions and such other terms and conditions as the Board may prescribe
("Restricted Stock Grants"):
(a) The purchase price per share of Common Stock for each Restricted
Stock Grant shall be fixed by the Board at not less than the then par value of a
share of Common Stock.
(b) Restricted Stock Grants to Participants may be made be subject to
vesting, in one or more installments, upon the happening of certain events, upon
the passage a specified period of time or upon the fulfillment of certain
conditions as the Board shall decide in each case when Restricted Stock Grants
are awarded.
(c) In the event of a Sale of the Company, the Board may provide, in its
discretion, that some or all of the shares of Common Stock under a Restricted
Stock Grant shall become fully vested for any Participant (i) who is a
Non-Employee Director at the time of the Sale of the Company and (ii) who is
removed as a director without cause or whose position is eliminated by
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a reduction in the size of the Board within a specified period of time of the
consummation of the Sale of the Company.
(d) Restricted Stock Grants hereunder shall be subject to a written
agreement (a "Restricted Stock Agreement") which shall be signed by the
Participant and by the Chief Executive Officer or the President of the Company
for and in the name and on behalf of the Company and shall be subject to the
terms and conditions of the Plan prescribed in the Restricted Stock Agreement
(including, but not limited to, (i) the right of the Company and such other
Persons as the Board shall designate ("Designees") to repurchase from each
Participant, and such Participant's transferees, all shares of Common Stock
issued to such Participant in the event of such Participant's removal as a
director or elimination of his position as a director of the Company, (ii)
rights of first refusal granted to the Company and Designees, (iii) holdback and
other registration right restrictions in the event of a public registration of
any equity securities of the Company and (iv) any other terms and conditions
which the Board shall deem necessary and desirable).
5.2 REPURCHASE OF FORFEITURE UPON TERMINATION OF POSITION. Except as
otherwise provided by the Board in the Restricted Stock Agreement for a
Participant's Restricted Stock Grant, any portion of such Participant's shares
of Common Stock that was not vested on the date of the termination of such
Participant's position as a director of the Company shall be repurchased or
forfeited as of such date.
ARTICLE VI
STOCK OPTIONS
6.1 AWARDS OF STOCK OPTIONS. The Board may grant Incentive Stock Options
and Nonqualified Stock Options to Participants, which Stock Options shall be
subject to the following terms and conditions and such other terms and
conditions as the Board may prescribe:
(a) The option exercise price per share of Common Stock shall be fixed by
the Board, but shall not be less than 100% of the Fair Market Value of a share
of Common Stock on the date of grant.
(b) Stock Options shall be exercisable at such time or times as the Board
shall determine at or subsequent to grant.
(c) Stock Options shall be exercised in whole or in part by written
notice to the Company (to the attention of Company's Secretary) accompanied by
payment in full of the option exercise price. Payment of the option exercise
price shall be made in cash (including check, bank draft or money order).
(d) The Board shall determine the term of each Stock Option, which term
shall in no event exceed ten years from the date of grant.
(e) The Board shall determine how and when shares covered by a Stock
Option may be purchased. The Board may establish waiting periods, the dates on
which Stock Options
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become exercisable or "vested" and, subject to paragraph (d) of this paragraph
6.1, exercise periods. The Board may accelerate the exercisability of any Stock
Option or portion thereof.
(f) Except as may otherwise be permitted by the Code, a Participant may
not receive a grant of Incentive Stock Options for Common Stock that would have
an aggregate fair market value in excess of $100,000 (or such other amount as
the Internal Revenue Service may decide from time to time) determined as of the
time the Incentive Stock Option is granted, that would be exercisable for the
first time by such person during any calendar year.
6.2 CONDITIONS AND LIMITATIONS ON VESTING AND EXERCISE OF STOCK OPTIONS.
Shares of Common Stock or Stock Options granted to Participants may be made
exercisable, subject to vesting, in one or more installments, upon the happening
of certain events, upon the passage a specified period of time or upon the
fulfillment of certain conditions as the Board shall decide in each case when
Stock Options are granted.
6.3 WRITTEN AGREEMENT. Each Stock Option granted hereunder to a
Participant shall be embodied in written agreement (a "Stock Option Agreement")
which shall be signed by the Participant and by the Chief Executive Officer or
the President of the Company for and in the name and on behalf of the Company
and shall be subject to the terms and conditions of the Plan prescribed in such
Stock Option Agreement (including, but not limited to, (i) the right of the
Company and such other Persons as the Board shall designate ("Designees") to
repurchase from each Participant, and such Participant's transferees, all shares
of Common Stock issued or issuable to such Participant on the exercise of a
Stock Option in the event of such Participant's termination of his position as a
director of the Company, (ii) rights of first refusal granted to the Company and
Designees, (iii) holdback and other registration right restrictions in the event
of a public registration of any equity securities of the Company and (iv) any
other terms and conditions which the Board shall deem necessary and desirable).
6.4 NONTRANSFERABILITY OF STOCK OPTIONS. Stock Options may not be
transferred other than by will or the laws of descent and distribution and,
during the lifetime of the Participant, may be exercised only by such
Participant (or his legal guardian or legal representative). In the event of the
death of a Participant, exercise of Stock Options granted hereunder shall be
made only:
(i) by the executor or administrator of the estate of the deceased
Participant or the Person or Persons to whom the deceased Participant's rights
under the Stock Option shall pass by will or the laws of descent and
distribution; and
(ii) to the extend that the deceased Participant was entitled thereto
at the date of his death, unless otherwise provided by the Board in such
Participant's Stock Option Agreement.
6.5 EXPIRATION OF STOCK OPTIONS.
(a) NORMAL EXPIRATION. In no event shall any part of any Stock Option be
exercisable after the date of expiration thereof (the "Expiration Date"), as
determined by the Board pursuant to paragraph 6.1(e) above.
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(b) EARLY EXPIRATION UPON TERMINATION OF POSITION. Except as otherwise
provided by the Board in the Stock Option Agreement, any portion of a
Participant's Stock Option that was not vested and exercisable on the date of
the termination of such Participant's position as a director of the Company
shall expire and be forfeited as of such date, and any portion of a
Participant's Stock Option that was vested and exercisable on the date of the
termination of such Participant's position as a director of the Company shall
expire and be forfeited as of such date, except that: (i) if any Participant
dies or becomes subject to any Disability, such Participant's Stock Option shall
expire 180 days after the date of his death or Disability, but in no event after
the Expiration Date, and (ii) if any Participant is removed as a director other
than for Cause, such Participant's Stock Option shall expire 30 days after the
date of his removal, but in no event after the Expiration Date.
ARTICLE VII
STOCK APPRECIATION RIGHTS
7.1 AWARDS OF STOCK APPRECIATION RIGHTS. The Board may, in its
discretion, grant a right to receive the appreciation in the Fair Market Value
of shares of Common Stock ("Stock Appreciation Right") either singly or in
combination with an underlying Stock Option granted hereunder. Such Stock
Appreciation Right shall be subject to the following terms and conditions and
such other terms and conditions as the Board may prescribe:
(a) If a Stock Appreciation Right is granted with respect to an
underlying Stock Option, it may be granted at the time of the Stock Option grant
or at any time thereafter but prior to the expiration of the Stock Option grant.
If a Stock Appreciation Right is granted with respect to an underlying Stock
Option, at the time the Stock Appreciation Right is granted the Board may limit
the exercise period for such Stock Appreciation Right, before and after which
period no Stock Appreciation Right shall attach to the underlying Stock Option.
In no event shall the exercise period for a Stock Appreciation Right granted
with respect to an underlying Stock Option exceed the exercise period for such
Stock Option. If a Stock Appreciation Right is granted without an underlying
Stock Option, the period for exercise of the Stock Appreciation Right shall be
set by the Board.
(b) If a Stock Appreciation Right is granted with respect to an
underlying Stock Option, the grantee will be entitled to surrender the Stock
Option which is then exercisable and receive in exchange therefor an amount
equal to the excess of the Fair Market Value of the Common Stock on the date the
election to surrender is received by the Company in accordance with exercise
procedures established by the Company over the Stock Option price (the "Spread")
multiplied by the number of shares covered by the Stock Option which is
surrendered. If a Stock Appreciation Right is granted without an underlying
Stock Option, the grantee will receive upon exercise of the Stock Appreciation
Right an amount equal to the excess of the Fair Market Value of the Common Stock
on the date the election to surrender such Stock Appreciation Right is received
by the Company in accordance with exercise procedures established by the Company
over the Fair Market Value of the Common Stock on the date of grant multiplied
by the number of shares covered by the grant of the Stock Appreciation Right.
Notwithstanding the foregoing, in its sole discretion the Board at the time it
grants a Stock Appreciation Right may provide that the Spread covered by such
Stock Appreciation Right may not exceed a specified amount.
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(c) Payment of a Stock Appreciation Right shall be in the form of shares
of Common Stock, cash or any combination of shares and cash. The form of payment
upon exercise of such a right shall be determined by the Board either at the
time of grant of the Stock Appreciation Right or at the time of exercise of the
Stock Appreciation Right.
ARTICLE VIII
GENERAL PROVISIONS
8.1 LISTING, REGISTRATION AND COMPLIANCE WITH LAWS AND REGULATIONS.
Grants of Incentives and shares of Common Stock issuable to Participants in the
exercise of Stock Options under this Plan shall be subject to the requirement
that if at any time the Board shall determine, in its discretion, that the
listing, registration or qualification of the shares of Common Stock or
Incentives granted under this Plan upon any securities exchange or under any
state or federal securities or other law or regulation, or the consent or
approval of any governmental regulatory body, is necessary or desirable as a
condition to or in connection with the award of Restricted Stock Grants, Stock
Options or Stock Appreciation Rights (or the issuance or purchase of shares
thereunder) under the Plan, no Restricted Stock Grants, shares of Common Stock
or Stock Options or Stock Appreciation Rights may be granted, or exercised, in
whole or in part, unless such listing, registration, qualification, consent or
approval shall have been effected or obtained free of any conditions not
acceptable to the Board. The holders of such Restricted Stock Grants, shares of
Common Stock or Stock Options or Stock Appreciation Rights shall supply the
Company with such certificates, representations and information as the Company
shall request and shall otherwise cooperate with the Company in obtaining such
listing, registration, qualification, consent or approval. In the case of
Non-Employee Directors and other Persons subject to Section 16(b) of the
Securities Exchange Act of 1934, as amended, the Board may at any time impose
any limitations upon the grant and/or vesting of Restricted Stock Grants, shares
of Common Stock or upon the exercise of a Stock Option or Stock Appreciation
Right that, in the Board's discretion, are necessary or desirable in order to
comply with such Section 16(b) and the rules and regulations thereunder. If the
Company, as part of an offering of securities or otherwise, finds it desirable
because of federal or state regulatory requirements to reduce the period during
which any Stock Options or Stock Appreciation Rights may be exercised, the
Board, may, in its discretion and without the Participant's consent, so reduce
such period on not less than 15 days written notice to the holders thereof.
8.2 WITHHOLDING OF TAXES. The Company shall be entitled, if necessary or
desirable, to withhold from any Participant from any amounts due and payable by
the Company to such Participant (or secure payment from such Participant in lieu
of withholding) the amount of any withholding or other tax due from the Company
with respect to any Incentives and/or shares of Common Stock subject to
Restricted Stock Grants or Stock Appreciation Rights or issuable under Stock
Options or Stock Appreciation Rights, and the Company may defer such issuance
unless indemnified to its satisfaction.
8.3 RIGHTS OF PARTICIPANTS. Nothing in this Plan or in any Agreement
shall interfere with or limit in any way the right of the Company to terminate
any Participant's position as a director of the Company at any time (with or
without cause), nor confer upon any Participant any
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right to continue as a director of the Company for any period of time or to
continue his present (or any other) rate of compensation as a director, and
except as otherwise provided under this Plan or by the Board in the Agreement.
In the event of any Participant's termination of his position as a director of
the Company (including, but not limited to, the removal by the Company without
Cause), any portion of such Participant's Restricted Stock Grant, Stock Option
or Stock Appreciation Right that was not previously vested, or vested and
exercisable, shall be repurchased or forfeited or expire as of the date of such
termination or removal. No employee shall have a right to be selected as a
Participant or, having been so elected, to be selected again as a Participant.
8.4 AMENDMENT, SUSPENSION AND TERMINATION OF PLAN. The Board may suspend
or terminate the Plan or any portion thereof at any time and may amend from time
to time in such respects as the Board may deem advisable; no such amendment
shall be made without stockholder approval to the extent such approval is
required by law, agreement or the rules of any exchange upon which the shares of
Common Stock are listed, and no such amendment, suspension or termination shall
impair the rights of Participants in respect of then outstanding Restricted
Stock Grants, Stock Options or Stock Appreciation Rights granted under this Plan
without the consent of the Participants affected thereby. No Restricted Stock
Grants, Stock Options or Stock Appreciation Rights shall be granted hereunder
after the tenth anniversary of the adoption of the Plan.
8.5 AMENDMENT, MODIFICATION AND CANCELLATION OF AGREEMENTS. The Board may
amend or modify any Restricted Stock Agreement, Stock Option Agreement or Stock
Appreciation Rights Agreement in any manner to the extent that the Board would
have had the authority under the Plan initially to grant Incentives in
accordance with such Restricted Stock Agreement, Stock Option Agreement or Stock
Appreciation Rights Agreement, provided that no such amendment or modification
shall impair the rights of any Participant under any Restricted Stock Agreement,
Stock Option Agreement or Stock Appreciation Rights Agreement without the
consent of such Participant. With the Participant's consent, the Board may
cancel any Stock Option or Stock Appreciation Right and issue a new Stock Option
and/or new Stock Appreciation Right to such Participant.
8.6 TERM OF THE PLAN. This Plan shall be effective as of August 22, 2003,
subject to the ratification of the adoption of the Plan by the Board of
Directors and the approval of the Plan by the affirmative vote of the
stockholders of the Company entitled to vote thereon at the time of such
approval. No Incentive shall be granted under the Plan after August 22, 2013,
but the term and exercise of Incentives granted theretofore may extend beyond
that date.
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