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 (Date of earliest event reported): May 24, 2018
Tyme Technologies, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 001-38169 | 45-3864597 | ||
|
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
17 State Street – 7th Floor
New York, New York 10004
(Address of principal executive offices, including zip code)
(646) 205-1603
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
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)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1934 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Introductory Comment – Use of Terminology
Throughout this Current Report on Form 8-K, the terms “the Company,” “we” and “our” refers to Tyme Technologies, Inc., a Delaware corporation (“ Tyme ”).
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
(d)
Election of Director
On May 24, 2018, the board of directors (the “Board”) of the Company appointed Don DeGolyer to serve on the Company’s Board. The Board appointed Mr. DeGolyer to fill a vacancy as a Class I director on the Board, in accordance with the Company’s By-laws, until the 2018 Annual Meeting of Stockholders. The Board has determined that Mr. DeGolyer is independent in accordance with applicable Nasdaq listing rules, and he will serve on the audit committee of the Board.
Mr. DeGolyer is the founder, chief executive officer, and a director of Vertice Pharma, LLC, a specialty pharmaceuticals company focused on improving patients’ health. He is also a director and member of the compensation committee of HLS Therapeutics Inc. (TSXV: HLS), a specialty pharmaceutical company listed on the TSX Venture Exchange in Canada. He has over 30 years of experience in the pharmaceuticals industry.
In conjunction with his appointment to the Board, Mr. DeGolyer was awarded 100,000 options to purchase shares of the Company’s common stock (“ Options ”) under the Company’s Restated 2016 Plan (as defined below), which options have a ten-year term and vest in equal quarterly increments over the next year. He will also be entitled to receive compensation provided to non-employee directors as approved by the Board and in effect from time to time. See “Director Compensation Program” below. The Options granted to Mr. DeGolyer are contingent upon stockholder approval of the Restated 2016 Plan, as further described in Section 8.01 below.
In conjunction with Mr. DeGolyer’s election and appointment to the audit committee, director Paul Sturman has stepped down from the audit committee. Mr. Sturman continues to serve as a member of the compensation committee (the “ Compensation Committee ”) of the Board.
(e)
Executive Compensation
On May 24, 2018, the Compensation Committee conducted a review of its compensation policy, in consultation with Pearl Meyer & Partners, LLC, its independent compensation consultant (“ Pearl Meyer ”), which assessed the competitiveness of its executive and outside director compensation programs. In connection with such review, the Compensation Committee approved and recommended to the Board the following changes to the Company’s executive compensation programs that address gaps identified by Pearl Meyer:
| • | Implementing a formal bonus program with scientific milestones and business development performance targets to be developed for fiscal year 2019; and |
| • | Implementing changes to the vesting schedule of the Company’s annual long-term incentive option awards that are awarded in the future to implement a four-year vesting schedule to vest 25% on the first anniversary of the grant date then pro-rata quarterly thereafter. |
These changes are expected to be further developed and implemented in the near term and the Company expects to describe them in more detail in the Proxy Statement for the Company’s 2018 Annual Meeting, which is expected to be filed in July 2018. The Company is also evaluating its employment contracts with Pearl Meyer against general market practices.
After consultation with Pearl Meyer, the Board also approved the following fiscal year 2019 executive salaries, fiscal year 2018 bonuses, and stock option grants for our named executive officers. Mr. Hoffman and Mr. Eckard received base salary increases of $100,000 and $20,000 respectively. The other named executive officers remained at fiscal year 2018 salary levels. In addition to the bonuses described in the table below, the Board authorized a bonus pool of $200,000 for its other employees, to be allocated by the Company’s Chief Executive Officer. The fiscal year 2018 bonuses are based on the Board’s evaluation of 2018 performance, including but not limited to the following key accomplishments, and are expected to be paid to the recipients shortly following their stock option grant:
| • | Announced successful interim clinical data for Phase II prostate data with 92% remaining relapse-free after 12-months. This was the first Phase II data presented for SM-88 for a single cancer indication |
| • | Announced five-year follow-up data on the First Human Study of end-stage cancer patients with 30-month median overall survival and no drug-related severe adverse events |
| • | Published four poster presentations and four additional abstracts at American Society of Clinical Oncology (“ASCO”) and European Society for Medical Oncology (“ESMO”) conferences, ASCO Genitourinary, and ASCO Gastrointestinal symposiums |
| • | Raised over $30 million, including completing our first underwritten public offering and uplisting to the Nasdaq Capital Market exchange |
| • | Presented at five investor conferences and obtained institutional research coverage |
| • | Achieved the issuance of four new US patents |
| • | Initiated a collaboration with the University of California San Francisco for prostate cancer |
| • | Began a Phase II clinical trial designed to encompass approximately 100 previously treated pancreatic cancer patients over 35 sites |
| • | Implemented new finance and administration systems intended to achieve more automated control systems and cost savings |
|
Name |
Title |
FY 2019 Salary | FY 2018 Bonus |
FY 2019 Stock
Option Grant |
||||||||||
|
Steve Hoffman |
Chairman, Chief Executive Officer, Chief Science Officer | $ | 550,000 | $ | 273,500 | N/A | ||||||||
|
Michael Demurjian |
Chief Operating Officer | $ | 450,000 | $ | 273,500 | N/A | ||||||||
|
Ben R. Taylor |
President, Chief Financial Officer | $ | 450,000 | $ | 200,000 | 400,000 | ||||||||
|
Giuseppe Del Priore |
Chief Medical Officer | $ | 400,000 | $ | 120,000 | 300,000 | ||||||||
|
Jonathan Eckard |
Chief Scientific Affairs Officer | $ | 375,000 | $ | 100,000 | 300,000 | ||||||||
| Item 8.01 | Other Events. |
Director Compensation Program
On May 24, 2018, the Compensation Committee also conducted a review of the Company’s director compensation policy, in consultation with Pearl Meyer. Their initial findings were that the Company’s director equity compensation was meaningfully below the median of peer biotech companies. In addition, the Company did not provide additional compensation for service on Board committees, as is common among the Company’s biotech peers. In connection with such review, and upon the recommendation of the Compensation Committee, the Board approved changes to the director compensation program, such that the program consists of the following:
| • | Directors’ annual cash retainer will remain $50,000; |
| • | The annual grant of options to purchase shares of Company common stock as compensation for director service will be increased from 10,000 to 50,000 Options; |
| • | A grant of 100,000 Options will be awarded upon the initial election of a director to the Board; |
| • | Annual cash retainers will be paid for service on Board committees in amounts to be determined; and, |
| • | Options awarded will vest in equal quarterly increments over a one-year period from the date of grant. |
The Compensation Committee recommended the foregoing director compensation program to the Board because it believes these changes will make the Company more competitive within its industry and peer group and promote the Company’s goals of attracting and retaining qualified outside directors. In connection with these modifications, the Board also approved one-time grants of 75,000 Options to each non-employee director of the Board, except Mr. DeGolyer, which was intended to be in lieu of any past due cash or equity compensation related to prior periods.
In connection with these changes to the Company’s director compensation program, the Board approved an amendment and restatement of the 2016 Stock Option Plan for Non-Employee Directors (the “ Restated 2016 Director Plan ”) to increase the number of shares authorized to be issued under the plan and to permit different award structures and different vesting schedules than currently provided for in the plan. The Board expects to submit the Restated 2016 Director Plan for approval by the stockholders at the 2018 Annual Meeting. Accordingly, all Options granted to the Company’s non-employee directors described in this report are contingent upon stockholder approval of the Restated 2016 Plan. If such approval is not received, the Options will be void and no longer exercisable.
The foregoing summary of the changes to the Restated 2016 Director Plan is qualified in its entirety by reference to the complete Amended and Restated 2016 Stock Option Plan for Non-Employee Directors filed as Exhibit 99.1 hereto and incorporated herein by reference.
2018 Annual Meeting of Stockholders
On May 24, 2018, the Board set August 23, 2018 as the date for the Annual Meeting of Stockholders of the Company for 2018 (the “ 2018 Annual Meeting ”) to be held at a location to be determined at a later date. The Board also approved June 25, 2018 as the record date for the 2018 Annual Meeting. Only stockholders of record at the close of business on that date may attend and vote at the meeting or any adjournment thereof.
Deadline for Stockholder Proposals to be Considered for Inclusion in the Company’s Proxy Materials
Because the Company did not hold an Annual Meeting of Stockholders in 2017, the Company has set a new deadline for the receipt of any stockholder proposals submitted pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), for inclusion in the Company’s proxy materials for the 2018 Annual Meeting. Such proposals must be delivered to the Company’s Controller at 17 State Street – 7th Floor, New York, New York 10004 no later than the close of business on June 8, 2018 to be considered timely, which the Company has determined to be a reasonable time before the Company begins to print and send proxy materials. The Company recommends that such proposals be sent by certified mail, return receipt requested. Such proposals must also comply with the rules of the Securities and Exchange Commission regarding the inclusion of shareholder proposals in proxy materials and may be omitted if not in compliance with applicable requirements.
Deadline for Stockholder Proposals to be Brought Before the 2018 Annual Meeting
In accordance with the Company’s Amended and Restated By-laws, proposals of stockholders made outside of Rule 14a-8 under the Exchange Act must be received no later than the close of business on June 8, 2018 in order to be considered at the 2018 Annual Meeting. Such proposals must be delivered to the Company’s Controller at 17 State Street – 7th Floor, New York, New York 10004 and must also comply with all other requirements set forth in the Company’s Amended and Restated By-laws and other applicable laws.
Deadline for Stockholder Nominations of Directors
In accordance with the Company’s Amended and Restated By-laws, stockholder nominations for directors must be received no later than the close of business on June 8, 2018 in order to be considered at the 2018 Annual Meeting. Such proposals must be delivered to the Company’s Controller at 17 State Street – 7th Floor, New York, New York 10004 and must also comply with all other requirements set forth in the Company’s Amended and Restated By-laws and other applicable laws.
| Item 9.01 | Financial Statements and Exhibits. |
Set forth below is a list of the exhibits to this Current Report on Form 8-K.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this Form 8-K to be signed on its behalf by the undersigned hereunto duly authorized.
| Tyme Technologies, Inc. | ||||||
| Dated: May 29, 2018 | By: |
/s/ Ben R. Taylor |
||||
| Ben R. Taylor, President and Chief Financial Officer | ||||||
Exhibit 99.1
TYME TECHNOLOGIES, INC.
2016 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
As Amended and Restated Effective May 24, 2018
TABLE OF CONTENTS
| Page | ||||||
|
1. |
Purpose |
1 | ||||
|
2. |
Definitions |
1 | ||||
|
3. |
Administration |
3 | ||||
|
4. |
Eligibility |
3 | ||||
|
5. |
Stock Subject to the Plan |
3 | ||||
|
6. |
Non-Employee Director Options |
4 | ||||
|
7. |
General Provisions |
6 | ||||
-i-
Tyme Technologies, Inc.
2016 Stock Option Plan for Non-Employee Directors
As Amended and Restated Effective May 24, 2018
| 1. | Purpose . |
The purpose of the Tyme Technologies, Inc. 2016 Stock Option Plan for Non-Employee Directors (the “Plan”) is to promote the interests of Tyme Technologies, Inc. (the “Company”) and its stockholders by providing Non-Employee Directors with an ownership interest in the Company in order to more closely align their interests with those of the Company’s stockholders and to enhance the Company’s ability to attract and retain highly qualified Non-Employee Directors.
| 2. | Definitions . |
The following terms, as used herein, shall have the following meanings:
| (a) | “ Award ” shall mean an Option granted pursuant to the Plan. |
| (b) | “ Award Agreement ” shall mean any written agreement, contract or other instrument or document between the Company and a Participant evidencing an Award. |
| (c) | “ Board ” shall mean the Board of Directors of the Company. |
| (d) | “ Cause ” shall mean (i) the engaging by the Participant in willful misconduct that is materially injurious to the Company, (ii) the embezzlement or misappropriation of funds or property of the Company by the Participant, (iii) the conviction of the Participant of a felony or the entrance of a plea of guilty or nolo contendere by the Participant to a felony, or (iv) the willful failure or refusal by the Participant to substantially perform his duties or responsibilities that continues after being brought to the attention of the Participant (other than any such failure resulting from the Participant’s incapacity due to disability). For purposes of this paragraph, no act, or failure to act, on the Participant’s part shall be considered willful unless done, or omitted to be done, by him not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Determination of Cause shall be made by the Board in its sole discretion. Any such determination shall be final and binding on a Participant. |
| (e) | “ Code ” shall mean the Internal Revenue Code of 1986, as amended from time to time. |
| (f) | “ Committee ” shall mean the Compensation Committee of the Board or, if no such committee has been appointed, a committee of the Board which shall be comprised of at least two members who shall qualify as “non-employee directors” within the meaning of Rule 16b-3 issued under the Exchange Act. Prior to the date on which a committee is appointed to administer the Plan, “Committee” shall mean the Board. |
| (g) | “ Common Stock ” shall mean the common stock, par value $0.0001 per share, of the Company. |
| (h) | “ Company ” shall have the meaning set forth in Section 1 hereof. |
| (i) | “ Effective Date ” shall have the meaning set forth in Section 9(j) hereof. |
| (j) | “ Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended from time to time. |
| (k) | “ Fair Market Value ” as of a particular date shall mean the fair market value of a share of Common Stock, based on the last sale before the grant date, the first sale after the grant date, the closing price on the trading day before or the trading day of the grant date, the arithmetic mean of the high and low prices on the trading day before or the trading day of the grant date or any other reasonable method using actual transactions in Common Stock as reported on the market. The method of determining Fair Market Value with respect to an Award shall be determined by the Committee; provided that, if the Committee does not specify a different method, the Fair Market Value as of a particular date shall be the closing price on the day as of which Fair Market Value is to be determined or, if there is no sale on such date, the next preceding day on which such a sale occurred. Notwithstanding the foregoing, (i) Fair Market Value shall be determined by the Committee in accordance with the applicable provisions of Section 20.2031-2 of the Federal Estate Tax Regulations, or in any other manner consistent with Code Section 422, and (ii) Fair Market Value shall be determined in accordance with Code Section 409A. |
| (l) | “ Non-Employee Director ” shall mean a member of the Board who is not also an employee of the Company or a subsidiary. |
| (m) | “ Option ” shall mean the right, granted pursuant to the Plan, to purchase shares of Common Stock. |
| (n) | “ Partial Disability ” shall mean that the Committee has determined, in its sole discretion, that a Participant is partially disabled. |
| (o) | “ Participant ” shall mean a Non-Employee Director selected by the Committee to receive an Award under the Plan. |
| (p) | “ Permanent Disability ” means that the Participant has been determined to be disabled by the Committee in its sole discretion. |
| (q) | “ Plan ” shall have the meaning set forth in Section 1 hereof. |
| (r) | “ Plan Year ” shall mean the Company’s fiscal year. |
2
| (s) | “ Retirement ” shall mean the Participant’s termination of service on the Board by reason of retirement, as determined by the Committee in its sole discretion. |
| (t) | “ Securities Act ” shall mean the Securities Act of 1933, as amended from time to time, and as now or hereafter construed, interpreted and applied by regulations, rulings and cases. |
| 3. | Administration . |
| (a) | Committee’s Powers . Except as reserved to the discretion of the Board hereunder, the Plan shall be administered by the Committee. The Committee shall have the authority, in its sole discretion, subject to and not inconsistent with the express provisions of the Plan, to administer the Plan. The Committee will have the authority to: (i) construe and interpret the Plan, any Award Agreement and any other agreement or document executed pursuant to the Plan; (ii) prescribe, amend and rescind rules and regulations relating to the Plan or any Award; (iii) select persons to receive Awards; (iv) determine the form and terms of Awards; (v) determine the number of shares of Common Stock subject to Awards; (vi) grant waivers of Plan or Award conditions; (vii) determine the vesting, exercisability and payment of Awards; (viii) correct any defect, supply any omission or reconcile any inconsistency in the Plan, any Award or any Award Agreement; and (ix) make all other determinations necessary or advisable for the administration of the Plan. |
| (b) | Committee’s Discretion Final . All determinations, decisions and interpretations made by the Committee pursuant to the provisions of the Plan shall be final, conclusive and binding on all parties, including Non-Employee Directors, the Company, the Company’s stockholders, and any other interested persons. |
| 4. | Eligibility . |
Each Non-Employee Director shall be eligible to be selected as a Participant in the Plan. The Committee shall select the Non-Employee Directors to receive Awards and shall determine the number of shares of Common Stock subject to a particular Award in such manner as the Committee determines in its sole discretion.
| 5. | Stock Subject to the Plan . |
| (a) | Number of Shares . The maximum number of shares of Common Stock reserved for issuance pursuant to the Plan shall be 2,750,000 subject to equitable adjustment as provided in Section 5(b) below. Such shares may, in whole or in part, be authorized but unissued shares or shares that shall have been or may be reacquired by the Company in the open market, in private transactions or otherwise. If any shares subject to an Award are forfeited, cancelled, exchanged or surrendered or if an Award otherwise terminates or expires without a distribution of shares to the Participant, the shares of Common Stock with respect to such Award shall, to the extent of any such forfeiture, cancellation, exchange, surrender, termination or expiration, again be available for Awards under the Plan. |
3
| (b) | Equitable Adjustment . In the event that an extraordinary transaction or other event or circumstance affecting the Common Stock shall occur, including, but not limited to, any extraordinary dividend or other distribution (whether in the form of cash, stock or other property), or recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, spin-off, combination, repurchase, share exchange, sale of assets or other similar transaction or event, and the Committee determines that a change or adjustment in the terms of any Award is appropriate, then the Committee may, in its sole discretion, make such equitable changes or adjustments or take any other actions that it deems necessary or appropriate (which shall be effective at such time as the Committee in its sole discretion determines), including, but not limited to (A) causing changes or adjustments to any or all of (i) the number and kind of shares of stock or other securities or property which may thereafter be issued under the Plan in connection with Awards, (ii) the number and kind of shares of stock or other securities or property issued or issuable in respect of outstanding Awards, and (iii) the exercise price relating to any Award, and (B) canceling outstanding Awards in exchange for replacement awards or cash. |
| 6. | Non-Employee Director Options . |
| (a) | General . The Committee may grant one or more Options to a Non-Employee Director and will determine (i) the number of shares of Common Stock subject to each such Option, (ii) the exercise price of each such Option, (iii) the period during which each such Option may be exercised, and (iv) all other terms and conditions of each such Option, subject to the terms and conditions of this Section 6. |
| (b) | Form of Option Award Agreement . Each Option granted pursuant to this Section 6 shall be evidenced by an Award Agreement. Each Award Agreement shall (i) state that the Option constitutes a Nonqualified Stock Option, (ii) state the number of shares of Common Stock to which the Option relates, (iii) contain such other provisions (which need not be the same for each Non-Employee Director or Option) as the Committee may from time to time approve, and (iv) comply with and be subject to the terms and conditions of the Plan. |
| (c) | Date of Grant . The date of grant of an Option will be the date on which the Committee makes the determination to grant such Option, unless otherwise specified by the Committee. |
| (d) |
Exercise Period . Each Option shall be exercisable within the times or upon the occurrence of one or more events determined by the Committee and set forth in the Award Agreement governing such Option, provided that no Option will be exercisable after the expiration of ten years from the date the Option is granted. The Committee also may provide for an Option to become exercisable at one time or from time to time, periodically or otherwise, in such number of shares of Common |
4
| Stock or percentage of share s of Common Stock as the Committee determines. Except as otherwise provided in an Award Agreement and provided that the Non-Employee Director shall have continually served as such from the date of grant through the applicable vesting date, an Option shall become vested on a quarterly basis over a one year period following the date of grant (at a rate of 1/4 per quarter), such that on the first anniversary of the date of grant, the Option will be fully vested. Notwithstanding the foregoing, except as otherwise provided in an Award Agreement, (i) each outstanding Option shall become immediately vested and exercisable in full upon the death of the Non-Employee Director, and (ii) if the Non-Employee Director’s membership on the Board terminates by reason of Retirement, Permanent Disability or Partial Disability, any outstanding Option held by such Non-Employee Director shall become immediately vested and exercisable in full. |
| (e) | Exercise Price . The exercise price of an Option will be determined by the Committee when the Option is granted and may be not less than 100% of the per share Fair Market Value of the shares of Common Stock subject to such Option on the date of grant of such Option. Payment for the shares of Common Stock purchased shall be made in accordance with Section 6(g) of the Plan. |
| (f) | Termination . Except as otherwise provided in an Award Agreement, upon the cessation of a Non-Employee Director’s membership on the Board for any reason, vested Options granted to such Non-Employee Director shall expire upon the earliest to occur of (i) two (2) years from the date of such cessation of Board membership, (ii) the tenth anniversary of the date of grant of the Option, or (iii) the second anniversary of the Non-Employee Director’s death; provided, the periods set forth in clauses (i) and (iii) may be extended upon Board approval. Any portion of an Option that is not vested on the Non-Employee Director’s cessation of Board membership for any reason (or does not become vested by reason of such cessation of membership under paragraph (f) above) shall be permanently forfeited on the date such membership ceases. |
| (g) | Method and Time of Payment . The Option exercise price shall be paid in full, at the time of exercise, in cash, in shares of Common Stock having a Fair Market Value equal to such Option exercise price, in a combination of cash and Common Stock or, in the sole discretion of the Committee or as set forth in any Award Agreement, through a cashless exercise procedure. |
| (h) |
Elective Options for Non-Employee Directors . Each Non-Employee Director may from time to time elect, in accordance with procedures established by the Committee, to receive in lieu of all or part of any cash fees for services as a director of the Company that would otherwise be payable to such Non-Employee Director (“Cash Fees”), an Option to purchase shares of Common Stock, which Option shall have a value (as determined in accordance with the Black-Scholes stock option valuation method) as of the date of grant of such Option equal to the amount of such Cash Fees. Notwithstanding anything to the contrary set forth elsewhere in the Plan, (i) the |
5
| Option shall remain outstanding for a term of two or five years from the date of grant, as elected by the Non-Employee Director, and (ii) the Option shall be fully vested and exercisable at the time of grant. |
| 7. | General Provisions . |
| (a) | Compliance with Legal Requirements . The Plan and the granting and exercising of Awards, and the other obligations of the Company under the Plan and any Award Agreement or other agreement shall be subject to all applicable federal and state laws, rules and regulations and to such approvals by any regulatory or governmental authority or agency as may be required. |
| (b) | Nontransferability . Awards shall not be transferable by a Participant other than by will or the laws of descent and distribution, and shall be exercisable during the lifetime of a Participant only by such Participant or his guardian or legal representative; provided, however Awards may be transferred pursuant to a domestic relations order awarding benefits to an “alternate payee” (within the meaning of Code Section 414(p)(8)) that the Committee determines satisfies the criteria set forth in paragraphs (1), (2), and (3) of Code Section 414(p). |
| (c) | No Right To Continued Directorship . Nothing in the Plan or in any Award granted or any Award Agreement or other agreement entered into pursuant hereto shall confer upon any Participant the right to continue to serve as a director of the Company or to be entitled to any remuneration or benefits not set forth in the Plan or such Award Agreement or other agreement. |
| (d) | Withholding Taxes . Where a Participant or other person is entitled to receive shares of Common Stock pursuant to the exercise of an Option or is otherwise entitled to receive shares of Common Stock or cash pursuant to an Award hereunder, the Company shall have the right to require the Participant or such other person to pay to the Company the amount of any taxes which the Company may be required to withhold before delivery to such Participant or other person of cash or a certificate or certificates representing such shares. |
Unless otherwise prohibited by the Committee or by applicable law, a Participant may satisfy any such withholding tax obligation by any of the following methods, or by a combination of such methods: (a) tendering a cash payment; (b) authorizing the Company to withhold from the shares of Common Stock or cash otherwise payable to such Participant through such Award having an aggregate Fair Market Value, determined as of the date the withholding tax obligation arises, equal to the amount of the total withholding tax obligation, and/or (c) delivering to the Company previously acquired shares of Common Stock (none of which shares may be subject to any claim, lien, security interest, community property right or other right of spouses or present or former family members, pledge, option, voting agreement or other restriction or encumbrance of any nature whatsoever) having an aggregate Fair Market Value, determined as of the date the withholding tax obligation arises, equal to the amount of the total withholding tax obligation.
6
| (e) | Amendment and Termination of the Plan . The Board may at any time and from time to time alter, amend, suspend, or terminate the Plan in whole or in part; provided that, any such amendment, suspension or termination of the Plan shall be subject to the requisite approval of the stockholders of the Company to the extent stockholder approval is necessary to satisfy the applicable requirements of the Exchange Act or Rule 16b-3 thereunder, any New York Stock Exchange, Nasdaq or securities exchange listing requirements or any other law or regulation. Except as otherwise provided herein, no amendment shall materially adversely affect the rights of any Participant under any Award previously granted under the Plan without such Participant’s consent. Unless sooner terminated by the Board, the Plan will automatically terminate on the tenth anniversary of the Effective Date. If the Plan is terminated, any unexercised Option shall continue to be exercisable in accordance with its terms and the terms of the Plan in effect immediately prior to such termination. |
| (f) | Participant Rights . Except as provided specifically herein, a Participant or a transferee of an Award shall have no rights as a stockholder with respect to any shares of Common Stock covered by any Award until the date of exercise of the Option and the issuance of a certificate to him or her for such shares in respect of such exercise. |
| (g) | Unfunded Status of Awards . The Plan is intended to constitute an unfunded plan for incentive compensation. With respect to any payments not yet made to a Participant pursuant to an Award, nothing contained in the Plan or any Award shall give any such Participant any rights that are greater than those of a general creditor of the Company. |
| (h) | No Fractional Shares . No fractional shares of Common Stock shall be issued or delivered pursuant to the Plan or any Award. The Committee shall determine whether cash, other Awards or other property shall be issued or paid in lieu of such fractional shares or whether such fractional shares or any rights thereto shall be forfeited or otherwise eliminated. |
| (i) | Governing Law . The Plan and all determinations made and actions taken pursuant hereto shall be governed by the laws of the State of Delaware without giving effect to the conflict of laws principles thereof. |
| (j) | Effective Date . The “Effective Date” of this Plan is May 9, 2016. |
| (k) | Beneficiary . A Participant may file with the Committee a written designation of a beneficiary on such form as may be prescribed by the Committee and may, from time to time, amend or revoke such designation. If no designated beneficiary survives the Participant, the executor or administrator of the Participant’s estate shall be deemed to be the grantee’s beneficiary. |
7
Exhibit 99.2
TYME TECHNOLOGIES, INC. 2016 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
CONTINGENT NONQUALIFIED STOCK OPTION AWARD AGREEMENT
THIS AGREEMENT is made on (the “Date of Grant”), by and between Tyme Technologies, Inc., a Delaware corporation (the “Company”), and (the “Participant”).
WHEREAS, the Company has adopted the Tyme Technologies, Inc. 2016 Stock Option Plan for Non-Employee Directors (the “Plan”); and
WHEREAS, the Company desires to grant to the Participant options under the Plan to acquire an aggregate of shares of common stock of the Company (“Common Stock”), on the terms set forth herein.
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions . Capitalized terms not otherwise defined herein shall have the meanings set forth in the Plan.
2. Grant of Options . The Participant is hereby granted an option (the “Option”) to purchase an aggregate of ( ) shares of Common Stock, pursuant to the terms of this Agreement and the provisions of the Plan. This Option is intended to constitute a nonqualified stock option.
This grant is being made subject to stockholder approval at the 2018 annual meeting of stockholders of an amendment and restatement of the Plan (the “Stockholder Approval”). If such Stockholder Approval is not obtained, then the Option shall be cancelled as of the Date of Grant.
3. Option Price . The initial exercise price per share of Common Stock subject to this Option shall be $ , subject to equitable adjustment in accordance with the Plan.
4. Conditions to Exercisability . Except as otherwise provided herein, the Option shall become exercisable according to the following schedule, provided that the Optionee is serving as a director of the Company on such dates:
|
Date |
Number of Shares | |
[Notwithstanding the foregoing, (i) the Option shall become immediately vested and exercisable in the event of the Participant’s death, and (ii) if the Participant’s service on the Board terminates by reason of Retirement, Permanent Disability or Partial Disability, the Option shall become immediately vested and exercisable.]
5. Period of Option . Except as otherwise provided herein, this Option shall remain outstanding for a term of [ ] years from the Date of Grant. Upon the cessation of a Participant’s membership on the Board for any reason, vested Options granted to the Participant shall expire upon the earliest to occur of (i) [ ] years from the date of such cessation of Board membership, (ii) the tenth anniversary of the date of grant of the Option, or (iii) the [ ] anniversary of the Participant’s death, provided that the periods set forth in clauses (i) and (iii) may be extended upon Board approval. Any portion of an Option that is not vested on the Participant’s cessation of Board membership for any reason (or does not become vested by reason of such cessation of membership) shall be permanently forfeited on the date such membership ceases.
6. Exercise of Option . The exercise provisions governing this Option are contingent upon Stockholder Approval. If, and only if, Stockholder Approval is obtained, then this Option may be exercised in whole or part, to the extent then exercisable, in the following manner: the Participant shall deliver to the Company written notice specifying the number of shares of Common Stock that the Participant elects to purchase. The Participant must include with such notice full payment of the exercise price for the Common Stock being purchased pursuant to such notice. The exercise price shall be paid in full at the time of exercise. The exercise price may be paid in cash or by check; by tendering shares of Common Stock previously acquired by the Participant; or in a combination of any of the foregoing, in an amount having a combined value equal to such exercise price. The value of any Common Stock tendered pursuant to the preceding sentence shall be the Fair Market Value of such Common Stock as of the last trading day prior to the date of exercise. The Committee, in its discretion, may require that any previously-owned shares of Common Stock tendered by the Participant in payment of the exercise price have been held by the Participant for at least six months prior to such tender. Upon the delivery of shares of Common Stock acquired pursuant to the exercise of Options, the Company shall have the right to require the payment of the amount of any taxes that are required by law to be withheld with respect to such delivery. The Participant shall not be deemed to be a holder of any shares of Common Stock pursuant to exercise of this Option until the date of the issuance of a stock certificate to him or her for such shares and until such shares are paid for in full, including any applicable withholding taxes. If permitted by the Committee at the time of exercise, this Option may also be exercised pursuant to a cashless exercise program.
7. Investment Representation and Legend of Certificates . The Company shall have the right to place upon the face and/or reverse side of any stock certificate or certificates evidencing the shares of Common Stock such legend as the Committee may prescribe for the purpose of preventing disposition of such shares of Common Stock in violation of the Securities Act.
8. Non Transferability . The Option shall not be transferable by Participant, other than by will, the laws of descent and distribution or pursuant to a domestic relations order, and is exercisable during the lifetime of Participant only by Participant, except as otherwise specifically provided in this Agreement or the Plan. The terms of this Agreement shall be binding upon the executors, administrators, heirs, successors and assigns of Participant.
9. Continued Directorship . Nothing herein shall confer upon the Participant the right to continue to serve as a director of the Company or to be entitled to any remuneration or benefits not set forth in the Agreement.
10. Clawback or Recoupment Policy . This Option, Common Stock delivered pursuant to this Option, and any gains or profits on the sale of such Common Stock shall be subject to any “clawback” or recoupment policy adopted by the Company.
11. Applicable Law . This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware without regard to principles of conflict of laws.
12. Limitations Applicable to Section 16 Persons . The grant of the Option pursuant to this Agreement is intended to qualify for an exemption from Section 16 of the Exchange Act pursuant to Rule 16b-3(d)(1) promulgated thereunder. To the extent such exemption is not available, notwithstanding any other provision of the Plan or this Agreement, the Option and this Agreement shall be subject to any additional limitations set forth in any applicable exemptive rule under Section 16 of the Exchange Act (including any amendment to Rule 16b-3 of the Exchange Act) that are requirements for the application of such exemption. To the extent permitted by applicable law, this Agreement shall be deemed amended to the extent necessary to conform to such applicable exemptive rule.
13. Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
Exhibit 99.3
TYME TECHNOLOGIES, INC. 2016 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
CONTINGENT NONQUALIFIED STOCK OPTION AWARD AGREEMENT
THIS AGREEMENT is made on (the “Date of Grant”), by and between Tyme Technologies, Inc., a Delaware corporation (the “Company”), and (the “Participant”).
WHEREAS, the Company has adopted the Tyme Technologies, Inc. 2016 Stock Option Plan for Non-Employee Directors (the “Plan”); and
WHEREAS, the Company desires to grant to the Participant options under the Plan to acquire an aggregate of shares of common stock of the Company (“Common Stock”), on the terms set forth herein.
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions . Capitalized terms not otherwise defined herein shall have the meanings set forth in the Plan.
2. Grant of Options . The Participant is hereby granted an option (the “Option”) to purchase an aggregate of ( ) shares of Common Stock, pursuant to the terms of this Agreement and the provisions of the Plan. This Option is intended to constitute a nonqualified stock option.
This grant is being made subject to stockholder approval at the 2018 annual meeting of stockholders of an amendment and restatement of the Plan (the “Stockholder Approval”). If such Stockholder Approval is not obtained, then the Option shall be cancelled as of the Date of Grant.
3. Option Price . The initial exercise price per share of Common Stock subject to this Option shall be $ , subject to equitable adjustment in accordance with the Plan.
4. Conditions to Exercisability . Except as otherwise provided herein, the Option shall become exercisable according to the following schedule, provided that the Optionee is serving as a director of the Company on such dates:
|
Date |
Number of Shares | |
[Notwithstanding the foregoing, (i) the Option shall become immediately vested and exercisable in the event of the Participant’s death, and (ii) if the Participant’s service on the Board terminates by reason of Retirement, Permanent Disability or Partial Disability, the Option shall become immediately vested and exercisable.]
5. Period of Option . Except as otherwise provided herein, this Option shall remain outstanding for a term of [ ] years from the Date of Grant. Upon the cessation of a Participant’s membership on the Board for any reason, vested Options granted to the Participant shall expire upon the earliest to occur of (i) [ ] years from the date of such cessation of Board membership, (ii) the tenth anniversary of the date of grant of the Option, or (iii) the [ ] anniversary of the Participant’s death, provided that the periods set forth in clauses (i) and (iii) may be extended upon Board approval. Any portion of an Option that is not vested on the Participant’s cessation of Board membership for any reason (or does not become vested by reason of such cessation of membership) shall be permanently forfeited on the date such membership ceases.
6. Exercise of Option . The exercise provisions governing this Option are contingent upon Stockholder Approval. If, and only if, Stockholder Approval is obtained, then this Option may be exercised in whole or part, to the extent then exercisable, in the following manner: the Participant shall deliver to the Company written notice specifying the number of shares of Common Stock that the Participant elects to purchase. The Participant must include with such notice full payment of the exercise price for the Common Stock being purchased pursuant to such notice. The exercise price shall be paid in full at the time of exercise. The exercise price may be paid in cash or by check; by tendering shares of Common Stock previously acquired by the Participant; or in a combination of any of the foregoing, in an amount having a combined value equal to such exercise price. The value of any Common Stock tendered pursuant to the preceding sentence shall be the Fair Market Value of such Common Stock as of the last trading day prior to the date of exercise. The Committee, in its discretion, may require that any previously-owned shares of Common Stock tendered by the Participant in payment of the exercise price have been held by the Participant for at least six months prior to such tender. Upon the delivery of shares of Common Stock acquired pursuant to the exercise of Options, the Company shall have the right to require the payment of the amount of any taxes that are required by law to be withheld with respect to such delivery. The Participant shall not be deemed to be a holder of any shares of Common Stock pursuant to exercise of this Option until the date of the issuance of a stock certificate to him or her for such shares and until such shares are paid for in full, including any applicable withholding taxes. If permitted by the Committee at the time of exercise, this Option may also be exercised pursuant to a cashless exercise program.
7. Acknowledgment . In consideration of receiving the grant of the Option, the Participant hereby acknowledges that the Option is granted in lieu of any past due compensation, and hereby waives and releases all claims, whether known or unknown, that the Participant may have against the Company arising out of or related to the Participant’s compensation as a director of the Company for periods prior to the Date of Grant.
8. Investment Representation and Legend of Certificates . The Company shall have the right to place upon the face and/or reverse side of any stock certificate or certificates evidencing the shares of Common Stock such legend as the Committee may prescribe for the purpose of preventing disposition of such shares of Common Stock in violation of the Securities Act.
9. Non Transferability . The Option shall not be transferable by Participant, other than by will, the laws of descent and distribution or pursuant to a domestic relations order, and is exercisable during the lifetime of Participant only by Participant, except as otherwise specifically provided in this Agreement or the Plan. The terms of this Agreement shall be binding upon the executors, administrators, heirs, successors and assigns of Participant.
10. Continued Directorship . Nothing herein shall confer upon the Participant the right to continue to serve as a director of the Company or to be entitled to any remuneration or benefits not set forth in the Agreement.
11. Clawback or Recoupment Policy . This Option, Common Stock delivered pursuant to this Option, and any gains or profits on the sale of such Common Stock shall be subject to any “clawback” or recoupment policy adopted by the Company.
12. Applicable Law . This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware without regard to principles of conflict of laws.
13. Limitations Applicable to Section 16 Persons . The grant of the Option pursuant to this Agreement is intended to qualify for an exemption from Section 16 of the Exchange Act pursuant to Rule 16b-3(d)(1) promulgated thereunder. To the extent such exemption is not available, notwithstanding any other provision of the Plan or this Agreement, the Option and this Agreement shall be subject to any additional limitations set forth in any applicable exemptive rule under Section 16 of the Exchange Act (including any amendment to Rule 16b-3 of the Exchange Act) that are requirements for the application of such exemption. To the extent permitted by applicable law, this Agreement shall be deemed amended to the extent necessary to conform to such applicable exemptive rule.
14. Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.