Exhibit 10.35
SCRIPTGEN PHARMACEUTICALS, INC.
NON-EMPLOYEE DIRECTORS STOCK PLAN
1. PURPOSE
The purpose of this Non-Employee Directors Stock Plan (the "Plan") is
to advance the interests of Scriptgen Pharmaceuticals, Inc. (the "Company") by
increasing the proprietary interest in the Company of non-employee members of
the Company's Board of Directors by providing their compensation in options to
acquire shares ("Shares") of the Company's common stock ("Common Stock").
2. ADMINISTRATION
The Plan shall be administered by the Stock Option Committee (the
"Committee") of the Board of Directors (the "Board") of the Company. The
Committee shall have authority, not inconsistent with the express provisions of
the Plan, (a) to administer the issuance of options granted in accordance with
the formula set forth in this Plan to such directors as are eligible to receive
options; (b) to prescribe the form or forms of instruments evidencing options
and any other instruments required under the Plan and to change such forms from
time to time; (c) to adopt, amend and rescind rules and regulations for the
administration of the Plan; and (d) to interpret the Plan and to decide any
questions and settle all controversies and disputes that may arise in connection
with the Plan. Such determinations of the Committee shall be conclusive and
shall bind all parties. Transactions under this plan are intended to comply
with all applicable conditions of Rule 16b-3 or its successors under Section 16
of the Securities Exchange Act of 1934 ("Rule 16b-3"). To the extent any
provision of the Plan or action by the Committee fails to so comply, it shall be
deemed null and void, to the extent permitted by law and deemed advisable by the
Committee.
3. EFFECTIVE DATE OF PLAN
The Plan is effective as of the consummation of the Company's proposed
initial public offering.
4. SHARES SUBJECT TO THE PLAN
(a) Number of Shares. The maximum number of Shares that may be
delivered upon the exercise of options granted under the Plan shall be 250,000
Shares (after giving effect to a proposed 1-for-3.07459 reverse split of the
Common Stock). If any option granted under the Plan terminates without having
been exercised in full, the number of Shares as to which such option was not
exercised shall be available for future grants and/or elections within the
foregoing limit.
(b) Shares to be Delivered. Shares delivered under the Plan shall be
authorized but unissued Shares or, if the Board so decides in its sole
discretion, previously issued Shares acquired by the Company and held in
treasury. No fractional Shares shall be delivered under the Plan.
(c) Changes in Stock; Restructuring, etc. In the event of a stock
dividend, stock split or combination of shares, the number and kind of shares of
stock or securities of the Company subject to options then outstanding or
subsequently granted under the Plan, the maximum number of shares or securities
that may be delivered under the Plan, the exercise price, and other relevant
provisions shall be appropriately adjusted by the Committee. In the event of
any other recapitalization, reorganization, extraordinary dividend or
distribution or restructuring transaction affecting the Common Stock, the number
of shares issuable under this Plan shall be subject to such adjustment as the
Committee may deem appropriate, and the number of shares issuable pursuant to
any option theretofore granted (whether or not then exercisable) and/or the
option price per share of such option shall be subject to such adjustment as the
Committee may deem appropriate with a view toward preserving the value or such
option.
5. ELIGIBILITY FOR OPTIONS
Directors eligible to receive options under the Plan and to elect to
receive Shares in lieu of cash compensation ("Non-Employee Directors") shall be
those directors who are not present or former employees of the Company or of any
subsidiary of the Company.
6. TERMS AND CONDITIONS OF OPTIONS
(a) Number of Options. On the date of the final Prospectus used in
connection with the Company's initial public offering (the "IPO") of Common
Stock, each of the Company's Non-Employee Directors, and each director nominee,
shall be awarded an option covering 10,000 Shares (after giving effect to a
proposed 1-for-3.07459 reverse split of the Common Stock). On the date of each
subsequent annual meeting of stockholders, each Non-Employee Director continuing
in office shall be awarded an option covering 4,000 Shares (after giving effect
to a proposed 1-for-3.07459 reverse split of the Common Stock) and each newly
elected Non-Employee Director shall be awarded an option covering 10,000 Shares
(after giving effect to a proposed 1-for-3.07459 reverse split of the Common
Stock). For purposes of this paragraph, each Non-Employee Director elected to
office at a special meeting of stockholders or by the Board since the then last
annual meeting shall be treated as a Non-Employee Director who has been
newly-elected at an annual meeting of stockholders. In addition, each member of
a committee of the Board shall receive, on each one-year anniversary of his or
her appointment to such committee, an option covering 250 Shares (after giving
effect to a proposed 1-for-3.07459 reverse split of the Common Stock).
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(b) Exercise Price. The exercise price of each option shall be the
fair market value per Share at the time the option is granted. In no event,
however, shall the option price be less, in the case of an original issue of
authorized stock, than par value per share. For purposes of this subsection,
the fair market value of a Share on any date shall be the last sale price of a
share of Common Stock on such day as reported on NASDAQ (or if the Common Stock
is then listed or admitted to unlisted trading privileges on a national
securities exchange, the last sale price of a share of Common Stock regular way
on the principal national securities exchange on which the Common Stock is then
listed or admitted to unlisted trading privileges) or, if there was no such
reported price on such day, the latest day prior thereto on which there was such
a reported price. Notwithstanding the foregoing, all options granted on the
date of the final Prospectus used in connection with the Company's IPO shall
have an exercise price equal to the offering price to the public of the Common
Stock in the IPO.
(c) Duration of Options. The latest date on which an option may be
exercised (the "Final Exercise Date") shall be the date which is 10 years from
the date the option was granted.
(d) Exercise of Options.
(1) Each option shall become exercisable to the extent of
one-third of the Shares covered thereby on each of the first
three anniversaries of the date of the grant.
(2) Any exercise of an option shall be in writing, signed by the
proper person and delivered or mailed to the Company,
accompanied by (i) any documentation required by the
Committee and (ii) payment in full for the number of Shares
for which the option is exercised.
(3) If an option is exercised by the executor or administrator
of a deceased director, or by the person or persons to whom
the option has been transferred by the director's will or
the applicable laws of descent and distribution, the Company
shall be under no obligation to deliver Shares pursuant to
such exercise until the Company is satisfied as to the
authority of the person or persons exercising the option.
(e) Payment for and Delivery of Shares. Shares purchased under the
Plan shall be paid for as follows: (i) by certified or bank check or other
instrument acceptable to the Committee (in accordance with guidelines
established for this purpose), (ii) through the delivery of shares of Common
Stock (which, in the case of shares acquired from the Company, have been
outstanding for at least six months) having a fair market value on the last
business day preceding the date of exercise equal to the purchase price, (iii)
by delivery of an unconditional and irrevocable
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undertaking by a broker to deliver promptly to the Company sufficient funds to
pay the exercise price or (iv) by any combination of the permissible forms of
payment.
(f) Non-Transferability of Options. Except to the extent the
Committee shall otherwise determine, whether at the time the option is granted
or thereafter, no option may be transferred other than by will or by the laws of
descent and distribution; and during a director's lifetime an option may be
exercised only by him or her.
(g) Death, Retirement and Disability of a Director. Upon departure
from the Board by reason of death or disability (as determined by the
Committee), all options outstanding hereunder that are not otherwise exercisable
shall become immediately exercisable. All options held by such director may be
exercised by such director or by his or her executor or administrator, or by the
person or persons to whom the option is transferred by will or the applicable
laws of descent and distribution, at any time within one year after such
departure. After completion of the one year period, such options shall
terminate to the extent not previously exercised. Notwithstanding the
foregoing, options held by a director who dies following departure by reason of
disability shall remain exercisable for one year following death. In no event
shall any option referred to in this paragraph 6(g) be exercisable beyond its
stated term, if earlier.
(h) Other Termination of Status of Director. If a director's service
with the Company terminates for any reason other than death or disability as
specified in paragraph 6(g), all options held by the director that are not then
exercisable shall terminate. Options that are exercisable on the date of
termination shall continue to be exercisable for a period of sixty days (but not
beyond their stated term if earlier). After completion of that sixty-day
period, such options shall terminate to the extent not previously exercised,
expired or terminated.
(i) Mergers, etc. In the event of a consolidation or merger in which
the Company is not the surviving corporation or which results in the acquisition
of substantially all the Company's outstanding Stock by a single person or
entity or by a group or persons and/or entities acting in concert, or in the
event of a sale of all or substantially all assets or a dissolution or
liquidation of the Company, all options hereunder will terminate; provided, that
20 days prior to the effective date of any such merger, consolidation, sale,
dissolution, or liquidation, all options outstanding hereunder that are not
otherwise exercisable shall become immediately exercisable.
7. MISCELLANEOUS
(a) Rights as a Shareholder. Any option holder shall not have the
rights of a shareholder with regard to awards under the Plan except as to Shares
actually received by him or her under the Plan.
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(b) Compliance with Securities Laws. The Company shall not be
obligated to deliver any Shares until (1), in the opinion of the Company's
counsel, all applicable federal, state and foreign laws and regulations have
been complied with, (2) if the Company's common stock outstanding is at the time
listed on any stock exchange, the Shares to be delivered have been listed or
authorized to be listed on such exchange upon official notice of issuance, and
(3) all other legal matters in connection with the issuance and delivery of such
Shares have been approved by the Company's counsel. If the sale of Shares has
not been registered under the Securities Act of 1933, as amended, the Company
may require, as a condition to exercise of the option, such representations or
agreements as counsel for the Company may consider appropriate to avoid
violation of such Act and may require that the certificates evidencing such
Shares bear an appropriate legend restricting transfer.
8. EFFECT, TERMINATION AND AMENDMENT
The Committee may at any time terminate the Plan, but options previously
granted shall not be affected thereby. The Board may at any time or times amend
the Plan for any purpose which may at the time be permitted by law; provided,
that except to the extent expressly required or permitted by the Plan, no such
amendment will, without the approval of the stockholders of the Company,
effectuate a change for which stockholder approval is required in order for the
Plan to continue to qualify under Rule 16b-3.
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