Stock Option Agreement - Biopure Corp. and Thomas A. Moore
BIOPURE CORPORATION
STOCK OPTION AGREEMENT
THIS AGREEMENT is made as of June 25, 2002, by and between
BIOPURE CORPORATION, a Delaware corporation (the "Company"), and Thomas A. Moore
(the "Optionee").
WITNESSETH:
WHEREAS, the Company has entered in an employment agreement
(the "Employment Agreement"), dated as of June 25, 2002, with the Optionee; and
WHEREAS, in accordance with the provisions of the Employment
Agreement the Committee has authorized the grant to the Optionee of options
("Options"), on the terms and subject to the conditions hereinafter provided;
NOW, THEREFORE, in consideration of the premises contained
herein, the Company and the Optionee hereby agree as follows:
1. DEFINITIONS
"Board" shall mean the Board of Directors of the Company.
"Cause" shall mean (a) an act or acts of material personal
dishonesty taken by, or committed at the request of, the Optionee intended to
result in the personal enrichment of the Optionee at the expense of the Company,
(b) repeated willful violations by the Optionee under the terms of his
employment which have not been cured within thirty (30) days after written
notice has been given by the Board to the Employee, or (c) the conviction of the
Optionee of a felony.
"Change of Control" shall mean (a) the consummation of (i) any
consolidation, reorganization, merger or share exchange of the Company in which
the Company is not the continuing or surviving corporation or pursuant to which
shares of the Company's Common Stock would be converted into cash, securities or
other property, other than a merger or share exchange of the Company in which
the holders of the Company's Common Stock immediately prior to the merger
continue to represent at least fifty percent (50%) of the combined voting power
of the surviving corporation or its parent corporation immediately after the
merger or share exchange, or (ii) any sale, lease, exchange or other transfer
(in one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company, or (b) the shareholders of the
Company shall approve any plan or proposal for liquidation or dissolution of the
Company, or (c) any person (as such term is used in Sections 13(d) and 14(d)(2)
of the
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Exchange Act), including any "group" (as defined in Section 13(d)(3) of the
Exchange Act) (which shall not include the Company, any subsidiary of the
Company or any employee benefit plan of the Company or of any subsidiary of the
Company) shall become the beneficial owner (within the meaning of Rule 13d-3
under the Exchange Act) of fifty percent (50%) or more of the Company's
outstanding Common Stock or (d) within any twenty-four (24) month period
beginning on or after the Effective Date, the persons who were directors of the
Company immediately before the beginning of such period (the "Incumbent
Directors") shall cease (for any reason other than death, disability or
retirement) to constitute at least a majority of the Board or the board of
directors of any successor to the Company, provided that, any director who was
not a director as of the Effective Date shall be deemed to be an Incumbent
Director if such director was elected to the Board by, or on the recommendation
of or with the approval of, at least two-thirds of the directors who then
qualified as Incumbent Directors either actually or by prior operation of this
definition.
"Code" shall mean the Internal Revenue Code of 1986, as
amended. Reference in this Agreement to any section of the Code shall be deemed
to include any amendments or successor provisions to any section and any
regulation under such section.
"Committee" shall mean not less than two (2) members of the
Board who are selected by the Board from time to time to administer and make
awards under the Company's 2002 Omnibus Securities and Incentive Plan.
"Common Stock" shall mean the Class A Common Stock, par value
$0.01 per share, of the Company.
"Company" shall mean Biopure Corporation, a Delaware
corporation, and any successor thereto.
"Fair Market Value" shall mean, as of any specified date, the
average of the reported high and low sales prices of the Common Stock on the
stock exchange composite tape on that date, or if no sales prices are reported
on that date, on the last preceding date on which such prices of the Common
Stock are so reported. If the Common Stock is traded over-the-counter at the
time a determination of its fair market value is required to be made hereunder,
its fair market value shall be deemed to be equal to the average between the
reported high and low or closing bid and asked prices of Common Stock on the
most recent date of which Common Stock was publicly traded. In the event Common
Stock is not publicly traded at the time a determination of this value is
required to be made hereunder, the determination of its fair market value shall
be made by the Committee in such manner as it deems appropriate.
"Family Member" shall mean any child, stepchild, grandchild,
parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew,
mother-in-law father-in-law, son-in-law, daughter-in-law, brother-in-law, or
sister-in-law, including adoptive relationships, any person sharing the
Optionee's household (other than a tenant or the Optionee), a trust in which
such persons have more than fifty percent (50%) of the beneficial interest, a
foundation in which such persons (or the Optionee) control the management of
assets, and any other entity in which such persons (or the Optionee) own more
than fifty percent (50%) of the voting interests.
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"First Performance Date" shall mean the first trading day
after the Fair Market Value of the Common Stock has been at least $14.00 per
share on each of the immediately preceding forty-five (45) consecutive trading
days.
"Good Reason" shall mean: (a) the reduction of the Optionee's
base salary or target bonus opportunity without the Optionee's prior written
consent; (b) the diminution, without his consent, of the Optionee's title,
authority, duties or responsibilities as specified in Section 3 of the
Employment Agreement, or the assignment of duties and responsibilities that are
inconsistent with his position as President and Chief Executive Officer of the
Company, or if the Optionee reports to anyone other than the Board; (c) the
Company requiring the Optionee, without his consent, to be based in any office
or location other than the Company's headquarters office, and such headquarters
shall not be located during the employment period as set forth in the Employment
Agreement outside of (i) a 30-mile radius of Cambridge, Massachusetts or (ii) a
60-mile radius of Princeton, New Jersey; (d) the material breach by the Company
of any provision of the Employment Agreement which has not been cured within
thirty (30) days after a notice of termination has been given by the Optionee to
the Company; (e) failure by the Board to have elected the Optionee Chairman of
the Board on or before July 1, 2005, or the removal of the Optionee as Chairman
of the Board during the Employment Period; or (f) failure of the Company to
obtain the assumption in writing of its obligations under the Employment
Agreement by any successor within 30 days of such succession.
"Option" shall mean an option to purchase shares of Common
Stock.
"Second Performance Date" shall mean the first trading day
after the Fair Market Value of the Common Stock has been at least $21.00 per
share on each of the immediately preceding forty-five (45) consecutive trading
days.
"Third Performance Date" shall mean the first trading day
after the Fair Market Value of the Common Stock has been at least $28.00 per
share on each of the immediately preceding forty-five (45) consecutive trading
days.
"Total and Permanent Disability" shall mean the inability of
the Optionee to provide meaningful service for the Company due to a medically
determinable physical or mental impairment, which service is reasonably
consistent with the individual's past service for the Company, training and
experience. Such determination of total and permanent disability shall be made
by the Committee. Notwithstanding the foregoing, if the Optionee qualifies for
Federal Social Security disability benefits or for payments under a long-term
disability income plan of the Company, based upon his physical or mental
condition, the Optionee shall be deemed to suffer from a Total and Permanent
Disability hereunder.
"Trading day" shall mean a day when (a) trading generally
occurs during normal business hours on or by the New York Stock Exchange and the
NASDAQ Stock Market and (b) trading of any securities of the Company shall not
have been suspended on any exchange or in any over-the-counter market.
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2. GRANT OF OPTIONS
The Committee hereby grants to the Optionee an Option to
purchase 300,000 shares of the Company's Common Stock ("Shares") for an Option
Price per Share equal to $7.125. The Options granted under this Agreement are
intended by the Committee to be non-qualified stock options and the provisions
hereof shall be interpreted on a basis consistent with such intent.
3. OPTION TERMS AND EXERCISE PERIOD
a. The Options granted to the Optionee pursuant to this
Agreement shall be exercised, and payment by the Optionee of the Option Price
shall be made as provided in Section 5 of this Agreement.
b. All or any part of the Options awarded under this Agreement
may be exercised by the Optionee no later than the tenth (10th) anniversary of
the date of this Agreement.
c. This Agreement and the Options issued hereunder to the
Optionee shall terminate on the earlier of (i) the tenth (10th) anniversary of
the date of this Agreement or (ii) the date such Options are fully exercised.
4. VESTING AND TERMINATION OF EMPLOYMENT
The Option to purchase the number of Shares set forth in
Section 2 shall vest and become exercisable pursuant to the following schedule:
Vesting Date Shares Vested
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Earlier of the fourth anniversary of the date of this 100,000
Agreement or the First Performance Date
Earlier of the fourth anniversary of the date of this 100,000
Agreement or the Second Performance Date
Earlier of the fourth anniversary of the date of this 100,000
Agreement or the Third Performance Date
In the event of the death or termination of employment of the Optionee, all
Options vested on the date of such death or termination of employment shall
remain exercisable until the tenth anniversary of the date of grant of the
Options.
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5. EXERCISE OF OPTIONS
a. Options shall be exercisable by written notice of such
exercise, in the form prescribed by the Committee, to the Secretary of the
Company, at its principal office. The notice shall specify the number of Options
which are being exercised.
b. Shares purchased pursuant to this Agreement shall be paid
for in full at the time of such purchase in cash, in Shares, or part in cash and
part in Shares. Shares transferred in payment of the Option Price shall be
valued as of the date of transfer based on their Fair Market Value.
c. The Optionee may carry out a "cashless exercise," whereby,
in a properly-executed written notice, the Optionee directs (i) an immediate
market sale of all or a portion of the Shares to which he is entitled upon
exercise, (ii) the delivery of the Shares from the Company to a brokerage firm
and (iii) the delivery of the Option price from the sale proceeds from the
brokerage firm directly to the Company.
6. REGULATION BY THE COMMITTEE
This Agreement and the Options granted hereunder shall be
subject to such administrative procedures and rules as the Committee may adopt.
All decisions of the Committee upon any question arising under this Agreement
shall be conclusive and binding upon the Optionee and any person or persons to
whom Options hereunder have been transferred by will, by laws of descent and
distribution or by gift to a Family Member of the Optionee.
7. RIGHTS AS A SHAREHOLDER
The Optionee shall have no rights as a shareholder with
respect to Shares subject to Options granted hereunder until certificates for
shares of Common Stock are issued to the Optionee.
8. ADJUSTMENTS TO COMMON STOCK
If, and whenever, prior to the expiration of the Options or
distribution to the Optionee of the Shares, the Company shall effect a
subdivision or consolidation of shares of Common Stock or the payment of a stock
dividend on Common Stock without receipt of consideration by the Company, the
number of shares of Common Stock with respect to which such Options may
thereafter be exercised or satisfied, as applicable, (a) in the event of an
increase in the number of outstanding shares, shall be proportionately
increased, and the purchase price per share shall be proportionately reduced,
and (b) in the event of a reduction in the number of outstanding shares, shall
be proportionately reduced, and the purchase price per share shall be
proportionately increased.
9. RECAPITALIZATION
If the Company recapitalizes or otherwise changes it capital
structure, thereafter upon any exercise of the Options, the Optionee shall be
entitled to receive under such Options, in lieu of the number of shares of
Common Stock then covered by such Options, the number and
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class of shares of stock and securities to which the Optionee would have been
entitled pursuant to the terms of the recapitalization if, immediately prior to
such recapitalization, the Optionee had been the holder of record of the number
of shares of Common Stock then covered by such Options.
10. CHANGE OF CONTROL
If there is a Change in Control, then all outstanding unvested
Options shall immediately vest as of the date of such Change in Control and
shall remain exercisable until the earlier of (a) the end of the 90-day period
following the date of the termination of the Optionee's employment with the
Company or (b) the tenth anniversary of the date of grant of the Options. The
Committee, in its discretion by unanimous action, may determine that upon the
occurrence of a Change of Control, the Options outstanding hereunder shall
terminate within a specified number of days after notice to the Optionee, and
such Optionee shall receive with respect to each share of Common Stock subject
to such Options, cash in an amount equal to the excess of (a) the greater of (i)
the Fair Market Value of such share of Common Stock immediately prior to the
occurrence of such Change of Control or (ii) the value of the consideration to
be received in connection with such Change of Control for one share of Common
Stock, over (b) the exercise price per share, if applicable, of one share of
Common Stock. If the consideration offered to shareholders of the Company in any
transaction described in this Section 10 consists of anything other than cash,
the Committee shall determine the fair cash equivalent of the portion of the
non-cash consideration offered. The provisions contained in this Section 10
shall not terminate any rights of the Optionee to further payments pursuant to
any other agreement with the Company following the occurrence of a Change of
Control.
11. OTHER EVENTS
In the event of changes to the outstanding Common Stock by
reason of recapitalization, reorganization, mergers, consolidations,
combinations, exchanges or other relevant changes in capitalization occurring
after the date of the grant of the Options and not otherwise provided for under
this Agreement, any outstanding Options shall be subject to adjustment by the
Committee in its discretion as to the number and price of shares of Common Stock
or other consideration subject to such Options.
12. POWERS NOT AFFECTED
The existence of this Agreement and the Options granted
hereunder shall not affect in any way the right or power of the Board or of the
shareholders of the Company to make or authorize any adjustment,
recapitalization, reorganization or other change of the Company's capital
structure or business, any merger or consolidation of the Company, any issue of
debt or equity securities ahead of or affecting Common Stock or the rights
thereof, the dissolution or liquidation of the Company or any sale, lease,
exchange or other disposition of all or any part of its assets or business or
any other corporate act or proceeding.
13. NO ADJUSTMENT FOR CERTAIN CHANGES
Except as hereinabove expressly provided, the issuance by the
Company of shares of stock of any class or securities convertible into shares of
stock of any class, for cash, property,
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labor or services, upon direct sale, upon the exercise of rights or warrants to
subscribe therefor or upon conversion of shares or obligations of the Company
convertible into such shares or other securities, and in any case whether or not
for fair value, shall not affect the Options, and no adjustment by reason
thereof shall be made with respect to the number of shares of Common Stock
subject to the Options or the purchase price per share, if applicable.
14. NO RIGHTS CONFERRED
Nothing contained in this Agreement shall (a) confer upon the
Optionee any right with respect to continuation of employment with the Company
or (b) interfere in any way with the right of the Company to terminate the
employment of the Optionee at any time.
15. OTHER LAWS
The Company shall not be obligated to issue any Shares
pursuant to the Options at any time when the Shares covered by this Agreement
have not been registered under the Securities Act of 1933 (the "1933 Act") and
such other state and federal laws, rules or regulations as the Company or the
Committee deems applicable and, in the opinion of legal counsel of the Company,
there is no exemption from the registration requirements of such laws, rules or
regulations available for the issuance and sale of such shares. No fractional
shares of Common Stock shall be delivered, nor shall any cash in lieu of
fractional shares be paid.
16. NO RESTRICTION ON CORPORATE ACTION
Nothing contained in this Agreement shall be construed to
prevent the Company from taking any corporate action which is deemed by the
Company to be appropriate or in its best interest, whether or not such action
would have an adverse effect on the Options granted under this Agreement. The
Optionee shall not have any claim against the Company as a result of any such
action.
17. RESTRICTIONS ON TRANSFER
No Options under this Agreement shall or may be assigned,
transferred, sold, exchanged, encumbered, pledged or otherwise hypothecated or
disposed of by the Optionee except (a) by will or by the laws of descent and
distribution or (b) by gift to any Family Member of the Optionee.
Notwithstanding any such transfer, the Optionee shall continue to be subject to
the withholding requirements provided for under Section 25 hereof. The
transferee shall be subject to all terms of this Agreement. The transferee may
not transfer the Options.
18. OTHER PLANS
No amount received hereunder shall be taken into account in
computing the Optionee's salary or compensation for the purposes of determining
any benefits under any pension, retirement, life insurance or other benefit plan
of the Company, unless such other plan specifically provides for the inclusion
of such amount received.
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19. LIMITS OF LIABILITY
Any liability of the Company with respect to the Options shall
be based solely upon the contractual obligations created under this Agreement.
Neither the Company nor any member of the Committee shall have any liability to
any party for any action taken or not taken, in good faith, in connection with
or under this Agreement.
20. GOVERNING LAW
Except as otherwise provided herein, this Agreement shall be
construed in accordance with the laws of the State of Delaware.
21. SEVERABILITY OF PROVISIONS
If any provision of this Agreement is held invalid or
unenforceable, such invalidity or unenforceability shall not affect any other
provision of this Agreement, and this Agreement shall be construed and enforced
as if such invalid or unenforceable provision had not been included in this
Agreement.
22. HEADINGS
Headings used throughout the Agreement are for convenience
only and shall not be given legal significance.
23. RESERVATION AND REGISTRATION OF SHARES
With respect to the Options granted to the Optionee under this
Agreement, the Company hereby agrees to at all times reserve for issuance and/or
delivery upon payment by the Optionee of the Option Price, such number of Shares
as shall be required for issuance and/or delivery upon such payment pursuant to
such Options. The Company agrees to register under the 1933 Act, promptly
following the date of this Agreement, such number of Shares as shall be required
for issuance upon exercise of this Option.
24. DELIVERY OF SHARE CERTIFICATES
Within a reasonable time after the exercise of the Options
hereunder the Company shall cause to be delivered to the Optionee, his legal
representative or his beneficiary, a certificate for the Shares purchased
pursuant to the exercise of the Option.
25. WITHHOLDING
In the event the Optionee elects to exercise the Options
Option hereunder (or any part thereof), if the Company shall be required to
withhold any amounts by reason of any federal, state or local tax rules or
regulations in respect of the issuance of Shares to the Optionee, the Company
shall be entitled to deduct and withhold such amounts from any payment to be
made to the Optionee hereunder.
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26. AMENDMENT
This Agreement may not be amended or modified otherwise than
by a written agreement executed by the parties hereto or their respective
successors, assigns and legal representatives.
27. EFFECTIVE DATE OF GRANT
The Options granted under this Agreement shall be effective as
of the date first written above.
BIOPURE CORPORATION
By: ___________________________ By:________________________________
Its: Its:
WITNESS:
________________________________ ___________________________________
Thomas A. Moore
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