UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
_______________________
Date of Report: June 19, 2015 (Date of earliest
event reported)
CAPSTONE THERAPEUTICS CORP.
(Exact name of registrant as specified in its charter)
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Delaware
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000-21214
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86-0585310
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(I.R.S. Employer
Identification
No.)
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1275 West Washington Street, Suite 104,
Tempe, Arizona
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85281
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(Address of principal executive offices)
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(Zip Code)
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Registrant’s telephone number, including
area code:
(602) 286-5520
Check the appropriate box below if the Form
8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions
(see General Instruction A.2. below):
[ ] Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Section 5 - Corporate Governance and
Management
Item 5.02 Departure of Directors or Certain Officers;
Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
At the Capstone Therapeutics Corp. annual meeting of stockholders
held on June 19, 2015 (our “Annual Meeting”), the stockholders of Capstone Therapeutics Corp. (the “Company,”
“we,” “our” and “us”), upon the recommendation of the Company’s Board of Directors (our
“Board”), approved the Company’s 2015 Equity Incentive Plan (the “Plan”) and authorized 1,000,000
shares of common stock available for grant under the Plan.
The stated purposes of the Plan are to attract and retain the
best available employees and directors of the Company or any subsidiary of the Company which now exists or hereafter is organized
or acquired by the Company, as well as appropriate third parties who can provide valuable services to the Company, to provide additional
incentive to such persons and to promote the success and growth of the Company. We currently have two employees and
four non-employee members on the Board who may participate in the Plan. We also may provide grants to appropriate third
parties in the future as provided in the Plan.
The Plan provides for the grant of incentive stock options,
non-qualified stock options, stock appreciation rights, restricted stock shares and restricted stock units. A maximum
of 1,000,000 shares may be issued under the Plan and no person may receive awards for more than 300,000 shares in any calendar
year.
The Plan will be administered by a committee (the “Committee”)
designated by our Board. For purposes of the power to grant awards to Company directors, the Committee will consist
of the entire Board. For other Plan purposes, the Plan will be administered by a committee designated by our Board to
administer the Plan, which will initially be the Compensation Committee of our Board. The Committee may delegate some
of its responsibilities and powers to any executive officer or officers of the Company selected by it.
The Plan is included as part of Proposal 2 and as Appendix A
in our definitive proxy statement filed with the Securities and Exchange Commission (the “SEC”) on May 8, 2015.
Item 5.07. Submission of Matters
to a Vote of Security Holders.
Annual
Meeting of Stockholders
(a) Our
Annual Meeting of stockholders was held on June 19, 2015 with a quorum in attendance.
(b) At our
Annual Meeting, stockholders elected our nominee for a Class III Director; approved our 2015 Equity Incentive Plan, authorizing
1,000,000 shares of common stock available for grant thereunder; approved an amendment to our Second Amended and Restated Certificate
of Incorporation to increase the number of authorized shares of common stock from 100,000,000 to 150,000,000; and ratified the
appointment of Moss Adams LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2015.
The certified results of the matters voted upon at our Annual Meeting, which are more fully described in our definitive proxy statement
filed with the SEC on May 8, 2015, are as follows:
Proposal 1: Proposal
to Elect a Class III Director For Term Expiring in Year 2018:
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Number of Shares
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Director Nominee
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FOR
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WITHHELD
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BROKER
NON-VOTES
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Elwood D. Howse, Jr. (Class III)
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13,802,144
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2,089,072
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15,744,874
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Proposal 2: Approval of the Company’s
2015 Equity Incentive Plan:
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Number of Shares
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FOR
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AGAINST
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ABSTAIN
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BROKER
NON-VOTES
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14,889,650
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771,080
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230,486
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15,744,874
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Proposal 3: Approval to Amend the Company’s
Amended and Restated Certificate of Incorporation to Increase the Number of Authorized Shares of Common Stock from 100,000,000
to 150,000,000:
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Number of Shares
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FOR
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AGAINST
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ABSTAIN
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BROKER
NON-VOTES
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26,375,763
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4,928,264
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332,063
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N/A
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Proposal 4: Proposal to Ratify the
Appointment of Moss Adams LLP as our Independent Registered Public Accounting Firm for Fiscal Year 2015
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Number of Shares
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FOR
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AGAINST
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ABSTAIN
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31,147,733
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387,138
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101,219
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Section 9 - Financial
Statements and Exhibits
Item 9.01 Financial Statements and
Exhibits.
(d) Exhibits
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10.1
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2015 Equity Incentive Plan (Incorporated by reference
to Appendix A
to the Company’s definitive proxy statement filed with the SEC on May 8, 2015).
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10.2
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Form of Incentive Stock Option Grant Letter for Grants under the 2015
Equity Incentive Plan
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10.3
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Form of Non-Qualified Stock Option Grant Letter for Grants to Directors under the
2015 Equity Incentive Plan
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10.4
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Form of Non-Qualified Stock Option Grant Letter for Grants to Consultants under the
2015 Equity Incentive Plan
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SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
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Dated: June 22, 2015
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CAPSTONE THERAPEUTICS CORP.
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/s/ John M. Holliman, III
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John M. Holliman, III
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Executive Chairman
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Exhibit Index
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10.1
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2015 Equity Incentive Plan (Incorporated by reference
to Appendix A
to the Company’s definitive proxy statement filed with the SEC on May 8, 2015.
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10.2
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Form of Incentive Stock Option Grant Letter for Grants under the 2015
Equity Incentive Plan
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10.3
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Form of Non-Qualified Stock Option Grant Letter for Grants to Directors under the
2015 Equity Incentive Plan
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10.4
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Form of Non-Qualified Stock Option Grant Letter for Grants to Consultants under the
2015 Equity Incentive Plan
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Exhibit 10.2
LETTER OF INCENTIVE STOCK OPTION GRANT
CAPSTONE THERAPEUTICS CORP. 2015 EQUITY INCENTIVE PLAN
<DATE>_______________, ______
<NAME>
<STREET ADDRESS>
<CITY AND STATE>
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RE:
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Incentive Stock Option
Capstone Therapeutics Corp. 2015 Equity Incentive Plan
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Dear <Name>,
In order to provide
additional incentive to certain employees, directors and appropriate third parties, Capstone Therapeutics Corp. (the “Company”)
adopted the Capstone Therapeutics Corp. 2015 Equity Incentive Plan (the "2015 Plan"). By means of this letter (the “Letter
of Grant”), the Company is offering you an incentive stock option pursuant to the 2015 Plan. The Company’s sale of
its common shares underlying the option granted to you hereby has been or will be registered with the U.S. Securities and Exchange
Commission. A copy of the prospectus, including a copy of the 2015 Plan relating to that registration, can be obtained from the
Company by request.
The option granted
to you hereunder shall be subject to all of the terms and conditions of the 2015 Plan, which you should carefully review. In addition,
such option is subject to the following terms and conditions:
1.
Grant of Option
. The Company hereby grants to you, pursuant to the 2015 Plan, the option to purchase from the Company
upon the terms and conditions and at the times hereinafter set forth, an aggregate of <_______>
shares
of the Company’s
$0.0005 par value common stock (the "Shares") at a
purchase price of $<_______> per Share.
The date of grant
of this
option is <____________>, (hereinafter referred to as the "Option Date").
This option is an incentive
stock option within the meaning of the Internal Revenue Code of 1986, as amended (the "Code"), except if required by
applicable tax rules, to the extent that the aggregate fair market value (determined as of the date these options are granted)
of Shares exercisable for the first time by you during any calendar year (when aggregated, if appropriate, with shares subject
to other incentive stock option grants made under the 2015 Plan and any other plan maintained by the Company or any ISO Group member
as defined in the 2015 Plan) exceeds $100,000 (or such other limit as is prescribed by the Internal Revenue Code, as amended),
the option granted hereby as to such excess Shares shall be treated as a nonqualified stock option (NQO pursuant to Code Section
422(d).
2.
Exercise Term of Option
. Unless earlier terminated as described in Section 7, the option will vest and may be exercised
for the purchase of Shares as described in the following schedule: <
include vesting schedule>.
3.
Nontransferability.
This option shall not be transferable otherwise than by will or by the laws of descent and distribution,
and the option shall be exercisable only by you during your lifetime.
4.
Other Conditions and Limitations.
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(a)
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Any Shares issued upon exercise of this option shall not be issued unless the issuance and delivery
of Shares pursuant thereto shall comply with all relevant provisions of law including, without limitation, the Securities Act of
1933, as amended, the Securities Exchange Act of 1934, as amended, the rules and regulations promulgated thereunder, any applicable
state securities or "Blue Sky" law or laws (or an exemption from such provision is available), and the requirements of
any stock exchange or national market system of a national securities association upon which the Shares may then be listed and
shall be further subject to the approval of counsel for the Company with respect to such compliance.
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(b)
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No transfer of any Shares issued upon the exercise of the option will be permitted by the Company,
unless any request for transfer is accompanied by evidence satisfactory to the Company that the proposed transfer will not result
in a violation of any applicable law, rule or regulation, whether federal or state, including in the discretion of the Company
an opinion of counsel reasonably acceptable to the Company.
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(c)
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Inability of the Company to obtain approval from any regulatory body having jurisdictional authority
deemed by the Company's counsel to be necessary to the lawful issuance and sale of any Shares hereunder shall relieve the Company
of any liability in respect to the nonissuance or sale of such Shares as to which such requisite authority shall not have been
obtained.
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(d)
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Unless the Shares are subject to a then effective registration statement under the Securities Act
of 1933, upon exercise of this option (in whole or in part) and the issuance of the Shares, the Company shall instruct its transfer
agent to enter stop transfer orders with respect to Shares, and all certificates representing the Shares shall bear on the face
thereof substantially the following legend:
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“The shares of common stock represented
by this certificate have not been registered under the Securities Act of 1933, as amended, and may not be sold, offered for sale,
assigned, transferred or otherwise disposed of unless registered pursuant to the provisions of that Act or an opinion of counsel
to the Company is obtained stating that such disposition is in compliance with an available exemption from such registration.”
5.
Exercise of Option
. You may exercise the option only by giving the Executive Chairman of the Company written notice
(including the number of Shares that you are intending to acquire, accompanied by the full exercise price), by personal hand delivery,
by professional overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested,
at the following address:
Executive Chairman
Capstone Therapeutics Corp.
1275 West Washington Street, Suite 104
Tempe, AZ 85281
Payment of the option
price shall be made either in (i) cash or by check, or (ii) at your request and with the written approval of the Company, (a) by
delivering shares of the Company’s common stock beneficially owned by you prior to the time of exercise (“Delivered
Stock”), (b) by surrendering to the Company shares otherwise receivable upon exercise of the Stock Option (a "Net Exercise"),
or (c) any combination of the foregoing. However, Net Exercise will only be allowed when a Change of Control (as defined in the
2015 Plan) occurs. The Company may arrange for or cooperate in permitting broker-assisted cashless exercise procedures. Payment
in the form of Delivered Stock or a Net Exercise shall be in the amount of the fair market value of the stock at the date of exercise,
determined pursuant to the 2015 Plan.
6.
Valuation and Withholding
. If required by applicable regulations, the Company shall, at the time of issuance of any
Shares purchased pursuant to the 2015 Plan, provide you with a statement of valuation of the Shares issued. The Company shall be
entitled to withhold amounts from your compensation or otherwise to receive an amount adequate to provide for any applicable federal,
state and local income taxes (or require you to remit such amount as a condition of issuance). The Company may, in its discretion,
satisfy any such withholding requirement, in whole or in part, by withholding from the shares to be issued the number of shares
that would satisfy the withholding amount due.
7.
Termination of Incentive Stock Option
. Notwithstanding anything to the contrary, this option can become exercisable
only while you are an employee of the Company, and shall not be exercisable after the earliest of (i) the tenth anniversary of
the Option Date; (ii) three months after the date your employment with the Company terminates, if such termination is for any reason
other than permanent disability, death, or cause; (iii) the date your employment terminates, if such termination is for cause,
as determined by the Company in its sole discretion; or (iv) one year after the date your employment with the Company terminates,
if such termination is the result of death or permanent disability.
8.
Notice of Disposition of Shares.
If you dispose of any Shares acquired on the exercise of this option within either
(a) two years after the Option Date or (b) one year after the date of exercise of this option, you must notify the Company within
seven days of such disposition.
9.
Miscellaneous.
You will have no rights as a stockholder with respect to the Shares until the exercise of the option
and payment of the full purchase price therefore in accordance with the terms of the 2015 Plan and this Letter of Grant. Nothing
herein contained shall impose any obligation on the Company or any parent or subsidiary of the Company or on you with respect to
your continued employment by the Company or any parent or subsidiary of the Company. Nothing herein contained shall impose any
obligation upon you to exercise this option. While the option granted hereunder is intended to qualify as an incentive stock option
under Section 422 of the Code, the Company cannot assure you that such option will, in fact, qualify as an incentive stock option,
and makes no representation as to the tax treatment to you upon receipt or exercise of the option or sale or other disposition
of the Shares covered by the option.
10.
Governing Law.
This Letter of Grant shall be subject to and construed in accordance with the law of the State of Arizona,
except as may be required by the Delaware General Corporation Law or the federal securities laws. Venue for any action arising
from or relating to this Agreement shall lie exclusively in Superior Court, Maricopa County, Arizona or the United States District
Court for the District of Arizona, Phoenix Division.
11.
Relationship to the 2015 Plan
. The option contained in this Letter of Grant is subject to the terms, conditions and
definitions of the 2015 Plan. To the extent that the terms, conditions and definitions of this Letter of Grant are inconsistent
with the terms, conditions and definitions of the 2015 Plan, the terms, conditions and definitions of the 2015 Plan shall govern.
You hereby accept this option subject to all terms and provisions of the 2015 Plan. You agree to accept as binding, conclusive
and final all decisions or interpretations of the Board or any committee appointed by the Board upon any questions arising under
the 2015 Plan. You agree to consult your independent tax advisors with respect to the income tax consequences to you, if any, of
participating in the 2015 Plan and authorize the Company to withhold in accordance with applicable law from any compensation otherwise
payable to you any taxes required to be withheld by federal, state or local law as a result of your participation in the 2015 Plan.
12.
Communication
. No notice or other communication under this Letter of Grant shall be effective unless the same is in
writing and is personally hand-delivered, or is sent by professional overnight delivery service or mailed by registered or certified
mail, postage prepaid and with return receipt requested, addressed to the Company at the address set forth in Section 5 above,
or such other address as the Company has designated in writing to you, in accordance with the provisions hereof, or you at the
address set forth at the beginning of this letter, or such other address as you have designated in writing to the Company, in accordance
with the provisions hereof.
You should execute
the enclosed copy of this Letter of Grant and return it to the Company as soon as possible. The additional copy is for your records.
Very truly yours,
Capstone Therapeutics
___________________
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By:
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John M. Holliman, III
Executive Chairman
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ACCEPTED AND AGREED TO:
___________________________
Name / Signature
Date: _______________________
Exhibit 10.3
LETTER OF NON-QUALIFIED OPTION GRANT
CAPSTONE THERAPEUTICS CORP. 2015 EQUITY INCENTIVE PLAN
<DATE>_______________, ______
<NAME>
<STREET ADDRESS>
<CITY AND STATE>
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RE:
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Director Non-Qualified Stock Option
Capstone Therapeutics Corp. 2015 Equity Incentive Plan
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Dear <Name>,
In order to provide
additional incentive to certain employees, directors and appropriate third parties, Capstone Therapeutics Corp. (the "Company")
adopted the Capstone Therapeutics Corp. 2015 Equity Incentive Plan (the "2015 Plan"). By means of this letter (the “Letter
of Grant”), the Company is offering you a non-qualified stock option pursuant to the 2015 Plan. The Company’s sale
of its common shares underlying the option granted to you hereby has been or will be registered with the U.S. Securities and Exchange
Commission. A copy of the prospectus, including a copy of the 2015 Plan relating to that registration, can be obtained from the
Company by request.
The option granted
to you hereunder shall be subject to all of the terms and conditions of the 2015 Plan, which you should carefully review. In addition,
such option is subject to the following terms and conditions:
1.
Grant of Option
. The Company hereby grants to you, pursuant to the 2015 Plan, the option to purchase from the Company
upon the terms and conditions and at the times hereinafter set forth, an aggregate of <_______>
shares
of the Company’s
$0.0005 par value common stock (the "Shares") at a
purchase price of $<____> per Share.
The date of grant
of this
option is <____________>, (hereinafter referred to as the "Option Date").
2.
Exercise Term of Option
. Unless earlier terminated as described in Section 7, the option will vest and may be exercised
for the purchase of Shares as described in the following schedule:
100% immediately vested
.
3.
Nontransferability.
This option shall not be transferable otherwise than by will or by the laws of descent and distribution,
and the options shall be exercisable only by you during your lifetime. Notwithstanding the foregoing, the Board of Directors or
a committee appointed by the Board of Directors may permit you to transfer a non-qualified stock option to a family member or a
trust or partnership for the benefit of a family member, in accordance with rules established by the Board or a committee appointed
thereby.
4.
Other Conditions and Limitations.
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(a)
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Any Shares issued upon exercise of this option shall not be issued unless the issuance and delivery
of Shares pursuant thereto shall comply with all relevant provisions of law including, without limitation, the Securities Act of
1933, as amended, the Securities Exchange Act of 1934, as amended, the rules and regulations promulgated thereunder, any applicable
state securities or “Blue Sky” law or laws (or an exemption from such provision is available), and the requirements
of any stock exchange or national market system of a national securities association upon which the Shares may then be listed and
shall be further subject to the approval of counsel for the Company with respect to such compliance.
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(b)
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No transfer of any Shares issued upon the exercise of the option will be permitted by the Company,
unless any request for transfer is accompanied by evidence satisfactory to the Company that the proposed transfer will not result
in a violation of any applicable law, rule or regulation, whether federal or state, including in the discretion of the Company
an opinion of counsel reasonably acceptable to the Company.
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(c)
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Inability of the Company to obtain approval from any regulatory body having jurisdictional authority
deemed by the Company's counsel to be necessary to the lawful issuance and sale of any Shares hereunder shall relieve the Company
of any liability in respect to the nonissuance or sale of such Shares as to which such requisite authority shall not have been
obtained.
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(d)
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Unless the Shares are subject to a then effective registration statement under the Securities Act
of 1933, upon exercise of this option (in whole or in part) and the issuance of the Shares, the Company shall instruct its transfer
agent to enter stop transfer orders with respect to Shares, and all certificates representing the Shares shall bear on the face
thereof substantially the following legend:
|
“The shares of common stock represented
by this certificate have not been registered under the Securities Act of 1933, as amended, and may not be sold, offered for sale,
assigned, transferred or otherwise disposed of unless registered pursuant to the provisions of that Act or an opinion of counsel
to the Company is obtained stating that such disposition is in compliance with an available exemption from such registration.”
5.
Exercise of Option
. You may exercise the option only by giving the Executive Chairman of the Company written notice
(including the number of Shares that you are intending to acquire, accompanied by the full exercise price), by personal hand delivery,
by professional overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested,
at the following address:
Executive Chairman
Capstone Therapeutics Corp.
1275 West Washington Street, Suite 104
Tempe, Arizona 85281
Payment of the option price shall be made
either in (i) cash or by check, or (ii) at your request and with the written approval of the Company, (a) by delivering shares
of the Company’s common stock beneficially owned by you prior to the time of exercise (“Delivered Stock”), (b)
by surrendering to the Company shares otherwise receivable upon exercise of the Stock Option (a "Net Exercise"), or (c)
any combination of the foregoing. However, Net Exercise will only be allowed when a Change of Control (as defined in the 2015 Plan)
occurs. The Company may arrange for or cooperate in permitting broker-assisted cashless exercise procedures. Payment in the form
of Delivered Stock or a Net Exercise shall be in the amount of the fair market value of the stock at the date of exercise, determined
pursuant to the 2015 Plan.
6.
Valuation and Withholding
. If required by applicable regulations, the Company shall, at the time of issuance of any
Shares purchased pursuant to the 2015 Plan, provide you with a statement of valuation of the Shares issued. The Company shall be
entitled to withhold amounts from your compensation or otherwise to receive an amount adequate to provide for any applicable federal,
state and local income taxes (or require you to remit such amount as a condition of issuance). The Company may, in its discretion,
satisfy any such withholding requirement, in whole or in part, by withholding from the shares to be issued the number of shares
that would satisfy the withholding amount due.
7.
Termination of Non-Qualified Stock Options
. Notwithstanding anything to the contrary, this option can become exercisable,
and shall not be exercisable after the earliest of (i) the tenth anniversary of the Option Date; (ii) two years after the date
you cease to perform services for the Company, if such termination of services is for any reason other than death, permanent disability,
retirement or cause, (iii) three years after the date you cease to perform services for the Company, if such termination of services
is by reason of death, permanent disability or retirement, or (iv) the date you cease to perform services for the Company, if such
termination is for cause, as determined by the Board of Directors in its sole discretion. Notwithstanding anything to the contrary
in this Section 7, if you are a non-employee director of the Company and you have served as a director of the Company for at least
five years at the time you cease to serve in such capacity, your options will be fully exercisable until the expiration of such
options.
8.
Miscellaneous.
You will have no rights as a stockholder with respect to the Shares until the exercise of the option
and payment of the full purchase price therefore in accordance with the terms of the 2015 Plan and this Letter of Grant. Nothing
herein contained shall impose any obligation on the Company or any parent or subsidiary of the Company or on you with respect to
your continued employment by the Company or any parent or subsidiary of the Company. Nothing herein contained shall impose any
obligation upon you to exercise this option.
9.
Governing Law.
This Letter of Grant shall be subject to and construed in accordance with the law of the State of Arizona,
except as may be required by the Delaware General Corporation Law or the federal securities laws. Venue for any action arising
from or relating to this Agreement shall lie exclusively in Superior Court, Maricopa County, Arizona or the United States District
Court for the District of Arizona, Phoenix Division.
10.
Relationship to the 2015 Plan
. The option contained in this Letter of Grant is subject to the terms, conditions and
definitions of the 2015 Plan. To the extent that the terms, conditions and definitions of this Letter of Grant are inconsistent
with the terms, conditions and definitions of the 2015 Plan, the terms, conditions and definitions of the 2015 Plan shall govern.
You hereby accept this option subject to all terms and provisions of the 2015 Plan. You agree to accept as binding, conclusive
and final all decisions or interpretations of the Board or any committee appointed by the Board upon any questions arising under
the 2015 Plan. You agree to consult your independent tax advisors with respect to the income tax consequences to you, if any, of
participating in the 2015 Plan and authorize the Company to withhold in accordance with applicable law from any compensation otherwise
payable to you any taxes required to be withheld by federal, state or local law as a result of your participation in the 2015 Plan.
11.
Communication
. No notice or other communication under this Letter of Grant shall be effective unless the same is in
writing and is personally hand-delivered, or is sent by professional overnight delivery service or mailed by registered or certified
mail, postage prepaid and with return receipt requested, addressed to the Company at the address set forth in Section 5 above,
or such other address as the Company has designated in writing to you, in accordance with the provisions hereof, or you at the
address set forth at the beginning of this letter, or such other address as you have designated in writing to the Company, in accordance
with the provisions hereof.
You should execute the enclosed copy of
this Letter of Grant and return it to the Company as soon as possible. The additional copy is for your records.
Very truly yours,
Capstone Therapeutics Corp.
____________________________
ACCEPTED AND AGREED TO:
___________________________
Name:
Date: _______________________
Exhibit 10.4
LETTER OF NON-QUALIFIED OPTION GRANT
CAPSTONE THERAPEUTICS CORP. 2015 EQUITY INCENTIVE PLAN
<DATE>_______________, ______
<NAME>
<STREET ADDRESS>
<CITY AND STATE>
|
RE:
|
|
Consultant Non-Qualified Stock Option
Capstone Therapeutics Corp. 2015 Equity Incentive Plan
|
Dear <Name>,
In order to provide additional incentive to certain employees,
directors and appropriate third parties, Capstone Therapeutics Corp. (the “Company”) adopted the Capstone Therapeutics
Corp. 2015 Equity Incentive Plan (the “2015 Plan”). By means of this letter (the “Letter of Grant”), the
Company is offering you a non-qualified stock option pursuant to the 2015 Plan. The Company’s sale of its common shares underlying
the option granted to you hereby has been or will be registered with the U.S. Securities and Exchange Commission. A copy of the
prospectus, including a copy of the 2015 Plan relating to that registration, can be obtained from the Company by request.
The option granted to you hereunder shall be subject to all
of the terms and conditions of the 2015 Plan, which you should carefully review. In addition, such option is subject to the following
terms and conditions:
1.
Grant of Option
. The Company hereby grants to you, pursuant to the 2015 Plan, the option to purchase from the Company
upon the terms and conditions and at the times hereinafter set forth, an aggregate of <_______>
shares
of the Company’s
$0.0005 par value common stock (the "Shares") at a
purchase price of $<________> per Share.
The date of
grant of this
option is <____________>, (hereinafter referred to as the "Option Date").
2.
Exercise Term of Option
. Unless earlier terminated as described in Section 7, the option will vest and may be exercised
for the purchase of Shares as described in the following schedule
: (insert vesting schedule).
3.
Nontransferability.
This option shall not be transferable otherwise than by will or by the laws of descent and distribution,
and the options shall be exercisable only by you during your lifetime. Notwithstanding the foregoing, the Board of Directors or
a committee appointed by the Board of Directors may permit you to transfer a non-qualified stock option to a family member or a
trust or partnership for the benefit of a family member, in accordance with rules established by the Board or a committee appointed
thereby.
4.
Other Conditions and Limitations.
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|
(a)
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Any Shares issued upon exercise of this option shall not be issued unless the issuance and delivery of Shares pursuant thereto
shall comply with all relevant provisions of law including, without limitation, the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, the rules and regulations promulgated thereunder, any applicable state securities or “Blue
Sky” law or laws (or an exemption from such provision is available), and the requirements of any stock exchange or national
market system of a national securities association upon which the Shares may then be listed and shall be further subject to the
approval of counsel for the Company with respect to such compliance.
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(b)
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No transfer of any Shares issued upon the exercise of the option will be permitted by the Company, unless any request for transfer
is accompanied by evidence satisfactory to the Company that the proposed transfer will not result in a violation of any applicable
law, rule or regulation, whether federal or state, including in the discretion of the Company an opinion of counsel reasonably
acceptable to the Company.
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(c)
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Inability of the Company to obtain approval from any regulatory body having jurisdictional authority deemed by the Company's
counsel to be necessary to the lawful issuance and sale of any Shares hereunder shall relieve the Company of any liability in respect
to the nonissuance or sale of such Shares as to which such requisite authority shall not have been obtained.
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(d)
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Unless the Shares are subject to a then effective registration statement under the Securities Act of 1933, upon exercise of
this option (in whole or in part) and the issuance of the Shares, the Company shall instruct its transfer agent to enter stop transfer
orders with respect to Shares, and all certificates representing the Shares shall bear on the face thereof substantially the following
legend:
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“The shares of common stock represented
by this certificate have not been registered under the Securities Act of 1933, as amended, and may not be sold, offered for sale,
assigned, transferred or otherwise disposed of unless registered pursuant to the provisions of that Act or an opinion of counsel
to the Company is obtained stating that such disposition is in compliance with an available exemption from such registration.”
5.
Exercise of Option
. You may exercise the option only by giving the President of the Company written notice (including
the number of Shares that you are intending to acquire, accompanied by the full exercise price), by personal hand delivery, by
professional overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, at
the following address:
Capstone Therapeutics Corp.
1275 West Washington Street, Suite 104
Tempe, Arizona 85281
Payment of the option price shall be made either in (i) cash
or by check, or (ii) at your request and with the written approval of the Company, (a) by delivering shares of the Company’s
common stock beneficially owned by you prior to the time of exercise (“Delivered Stock”), (b) by surrendering to the
Company shares otherwise receivable upon exercise of the Stock Option (a "Net Exercise"), or (c) any combination of the
foregoing. However, Net Exercise will only be allowed when a Change of Control (as defined in the 2015 Plan) occurs. The Company
may arrange for or cooperate in permitting broker-assisted cashless exercise procedures. Payment in the form of Delivered Stock
or a Net Exercise shall be in the amount of the fair market value of the stock at the date of exercise, determined pursuant to
the 2015 Plan.
6.
Valuation and Withholding
. If required by applicable regulations, the Company shall, at the time of issuance of any
Shares purchased pursuant to the 2015 Plan, provide you with a statement of valuation of the Shares issued. The Company shall be
entitled to withhold amounts from your compensation or otherwise to receive an amount adequate to provide for any applicable federal,
state and local income taxes (or require you to remit such amount as a condition of issuance). The Company may, in its discretion,
satisfy any such withholding requirement, in whole or in part, by withholding from the shares to be issued the number of shares
that would satisfy the withholding amount due.
7.
Termination of Non-Qualified Stock Options
. Notwithstanding anything to the contrary, this option can become exercisable,
and shall not be exercisable after the earliest of (i) the tenth anniversary of the Option Date; (ii) two years after the date
you cease to perform services for the Company, if such termination of services is for any reason other than death, permanent disability,
retirement or cause, (iii) three years after the date you cease to perform services for the Company, if such termination of services
is by reason of death, permanent disability or retirement, or (iv) the date you cease to perform services for the Company, if such
termination is for cause, as determined by the Board of Directors in its sole discretion. Notwithstanding anything to the contrary
in this Section 7, if you are a non-employee director of the Company and you have served as a director of the Company for at least
five years at the time you cease to serve in such capacity, your options will be fully exercisable until the expiration of such
options.
8.
Change of Control or Termination without Cause.
Should a “Change of Control” (as defined in the 2015 Plan),
liquidation or “Termination without Cause”, as defined in this section 8 to this letter of Non-Qualified Option Grant,
occur, the option shall immediately vest at 100%.
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(a)
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As used herein, the term “Termination without Cause” shall mean the Company’s termination of your employment
other than a termination for Cause. In addition, a “Termination without Cause” shall have occurred if the Board alters
your duties so that you no longer render such services of an executive and administrative character to the Company as are usual
and customary in the case of your position at the time of the grant of the option covered hereby, at comparable compensation, benefits,
working conditions and work location as exist at the date of grant, except for changes unrelated to a “Change of Control”
that apply to substantially all employees.
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(b)
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As used herein, the term “Cause” shall mean your: (i) conviction or entry of a plea of nolo contendere for a crime
or offense involving misappropriation of monies or other property, or any felony offense (including Foreign Corrupt Practices Act
of 1977) for any crime of moral turpitude, or your commission of fraud or embezzlement; (ii) breach, other than an immaterial breach,
by you of your fiduciary duties to the Company, as determined under the laws of the State of Delaware; (iii) gross insubordination
or willful failure to discharge any of your material duties; (iv) willful or knowing violation of any law, rule, or regulation
of any governmental agency with jurisdiction over the Company which could reasonably be expected to impair the Company’s
ability to conduct its business in its usual manner or could reasonably be expected to subject the Company to public disrespect,
scandal or ridicule; (v) insobriety or non-therapeutic use of drugs, chemicals or controlled substances while performing the duties
and responsibilities of your position; or (vi) material willful misconduct with respect to the business and affairs of the Company
or any subsidiary or affiliate thereof, including, but not limited to your willful material violation of the Company’s Code
of Ethics, Insider Trading Policy or any other material Company policy applicable to all employees.
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9.
Miscellaneous.
You will have no rights as a stockholder with respect to the Shares until the exercise of the option
and payment of the full purchase price therefore in accordance with the terms of the 2015 Plan and this Letter of Grant. Nothing
herein contained shall impose any obligation on the Company or any parent or subsidiary of the Company or on you with respect to
your continued employment by the Company or any parent or subsidiary of the Company. Nothing herein contained shall impose any
obligation upon you to exercise this option.
10.
Governing Law.
This Letter of Grant shall be subject to and construed in accordance with the law of the State of Arizona,
except as may be required by the Delaware General Corporation Law or the federal securities laws. Venue for any action arising
from or relating to this Agreement shall lie exclusively in Superior Court, Maricopa County, Arizona or the United States District
Court for the District of Arizona, Phoenix Division.
11.
Relationship to the 2015 Plan
. The option contained in this Letter of Grant is subject to the terms, conditions and
definitions of the 2015 Plan. To the extent that the terms, conditions and definitions of this Letter of Grant are inconsistent
with the terms, conditions and definitions of the 2015 Plan, the terms, conditions and definitions of the 2015 Plan shall govern.
You hereby accept this option subject to all terms and provisions of the 2015 Plan. You agree to accept as binding, conclusive
and final all decisions or interpretations of the Board or any committee appointed by the Board upon any questions arising under
the 2015 Plan. You agree to consult your independent tax advisors with respect to the income tax consequences to you, if any, of
participating in the 2015 Plan and authorize the Company to withhold in accordance with applicable law from any compensation otherwise
payable to you any taxes required to be withheld by federal, state or local law as a result of your participation in the 2015 Plan.
12.
Communication
. No notice or other communication under this Letter of Grant shall be effective unless the same is in
writing and is personally hand-delivered, or is sent by professional overnight delivery service or mailed by registered or certified
mail, postage prepaid and with return receipt requested, addressed to the Company at the address set forth in Section 5 above,
or such other address as the Company has designated in writing to you, in accordance with the provisions hereof, or you at the
address set forth at the beginning of this letter, or such other address as you have designated in writing to the Company, in accordance
with the provisions hereof.
You should execute the enclosed copy of
this Letter of Grant and return it to the Company as soon as possible. The additional copy is for your records.
Very truly yours,
Capstone Therapeutics Corp.
_________________________
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By:
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Les M. Taeger
SVP & CFO
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ACCEPTED AND AGREED TO:
______________________________
Name:
Date: __________________________