AS FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION ON AUGUST 16, 2016
REGISTRATION NO. 333-________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ICAGEN, INC.
(Exact name of registrant as specified
in its charter)
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Delaware
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20-0982060
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(State or other jurisdiction
of incorporation or organization)
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(I.R.S. Employer
Identification Number)
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4222 Emperor Blvd., Suite 350
Durham, North Carolina 27703
(919) 941- 5206
(Address, including ZIP code, and telephone
number,
including area code, of registrant's principal executive office)
2005 STOCK OPTION PLAN
2015 STOCK INCENTIVE PLAN
(Full title of the Plan)
Richard Cunningham
Icagen, Inc.
4222 Emperor Blvd., Suite 350
Durham, North Carolina 27703
(919) 941- 5206
(Name, address and telephone number
of agent of services)
WITH COPIES TO:
Leslie Marlow, Esq.
Gracin & Marlow, LLP
The Chrysler Building
405 Lexington Avenue, 26
th
Floor
New York, New York 10174
(212) 907-6457
(Name, address and telephone number)
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions
of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2
of the Exchange Act. (Do not check if smaller reporting company):
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Large Accelerated Filer
¨
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Accelerated Filer
¨
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Non-Accelerated Filer
¨
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Smaller Reporting Company
þ
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CALCULATION OF REGISTRATION FEE
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TITLE OF
SECURITIES BEING REGISTERED
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AMOUNT TO
BE
REGISTERED
(1)(2)
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PROPOSED
MAXIMUM
OFFERING PRICE
PER
SHARE
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PROPOSED
Maximum
AGGREGATE
OFFERING
PRICE
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AMOUNT OF
REGISTRATION
FEE (3)
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Common Stock, par value $0.001 per share, under the 2005 Stock Option Plan
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790,770
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(4)
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$
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3.60
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(5)
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$
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2,846,772
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$
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286.67
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Common Stock, par value $0.001 per share, under the 2015 Stock Incentive Plan
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800,000
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(6)
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$
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3.50
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(7)
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$
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2,800,000
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$
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281.96
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Total
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1,590,770
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$
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5,646,772
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$
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568.63
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————————
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(1)
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The securities to be registered include options and other rights to acquire the common stock of the Registrant.
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(2)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers any additional securities that may be offered or issued in connection with any stock split, stock dividend or similar transaction.
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(3)
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Calculated under Section 6(b) of the Securities Act as .0001007 of the proposed maximum aggregate offering price.
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(4)
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Represents shares of the Registrant’s common stock issuable pursuant to outstanding options granted under the Registrant’s 2005 Stock Option Plan. The Registrant’s 2005 Stock Option Plan has been terminated; no additional stock awards will be granted under the Registrant’s 2005 Stock Option Plan and shares are no longer available for the grant of stock awards under the Registrant’s 2005 Stock Option Plan.
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(5)
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Estimated
solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) of the Securities Act. The
proposed maximum aggregate offering price per share and proposed maximum aggregate offering price for the 790,770 shares of
the Registrant’s common stock reserved for issuance upon the exercise of outstanding stock options granted under the
Registrant’s 2005 Stock Option Plan are calculated using a weighted average exercise price of $3.60 per share based on
exercise prices for such outstanding stock options ranging from $0.40 to $11.42 per share.
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(6)
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Represents 602,500 shares of the Registrant’s common stock issuable pursuant to outstanding options granted under the Registrant’s 2015 Stock Incentive Plan and 197,500 shares of the Registrant’s common stock reserved for future grant under the Registrant’s 2015 Stock Incentive Plan.
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(7)
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Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) of the Securities Act. The proposed maximum aggregate offering price per share and proposed maximum aggregate offering price for the 800,000 shares of the Registrant’s common stock reserved for issuance upon the exercise of outstanding stock options granted under the Registrant’s 2015 Stock Incentive Plan and future grants are calculated using an exercise price of $3.50 per share, which is the exercise price of 602,500 outstanding options and the book price of the remaining shares available for issuance under the 2015 Stock Incentive Plan.
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EXPLANATORY NOTE
Icagen, Inc. (the
“Registrant” or the “Company”) hereby files this Registration Statement on Form S-8 relating to its common
stock, par value $0.001 per share (the “Common Stock”), which have been reserved for issuance and are issuable pursuant
to the Company’s 2005 Stock Option Plan and the 2015 Stock Incentive Plan (hereinafter referred to as the “Plans”).
PART I
INFORMATION REQUIRED IN THE SECTION
10(a) PROSPECTUS
The information
specified in Item 1 and Item 2 of Part I of this Registration Statement on Form S-8 (the “Registration Statement”)
is omitted from this filing in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities
Act”), and the introductory note to Part I of Form S-8. The documents containing the information specified in Part I will
be delivered to the participants in the Plans as required by Rule 428(b)(1). Such documents and the documents incorporated by reference
in this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Securities and
Exchange Commission (the “Commission”) allows us to “incorporate by reference” the information we file
with it which means that we can disclose important information to you by referring you to those documents instead of having to
repeat the information in this prospectus. The information incorporated by reference is considered to be part of this prospectus,
and later information that we file with the Commission will automatically update and supersede this information. We incorporate
by reference the documents listed below and any future filings made with the Commission under Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) between the date of this prospectus and
the termination of the offering:
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·
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Our Annual Report on Form 10-K for the year ended December 31, 2015 filed with the Commission on April 14, 2016;
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·
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Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2016 filed with the Commission on May 19, 2016;
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·
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Our Quarterly Report on Form 10-Q for the quarter ended June 30, 2016 filed with the Commission on August 15, 2016;
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·
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Our Current Reports on Form 8-K filed with the Commission on February 26, May 20, June 30, July 7 and July 19, 2016; and
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·
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The description of our common stock set forth in our registration statement on Form 8-A, filed with the Commission on June 28, 2012 (File No. 000-54748).
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All documents filed
by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the filing of this Registration
Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold
or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration
Statement and to be a part hereof from the date of filing such documents, except as to specific sections of such documents as
set forth therein. The Registrant is not, however, incorporating by reference any documents or portions thereof, whether specifically
listed above or filed in the future, that are not deemed “filed” with the Commission, including any information furnished
pursuant to Items 2.02 or 7.01 of Form 8-K or related exhibits furnished pursuant to Item 9.01 of Form 8-K. Any statement
contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement contained in any subsequently filed document that also
is deemed to be incorporated by reference herein modifies or supersedes such statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the
Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to
directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities,
including reimbursement for expenses incurred, arising under the Securities Act of 1933, as amended (the “Securities Act”).
Our second
amended and restated certificate of incorporation, as amended and restated, provides for indemnification of our directors and executive
officers to the maximum extent permitted by the Delaware General Corporation Law (the “DGCL”), and our amended and
restated bylaws provide for indemnification of our directors and executive officers to the maximum extent permitted by the DGCL.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
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Exhibit No.
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Description of Document
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3.1
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Second Amended and Restated Certificate of Incorporation
(1)
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3.2
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Certificate of Amendment to Second Amended and
Restated Certificate of Incorporation (2)
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3.3
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Certificate of Amendment to Second Amended and
Restated Certificate of Incorporation (3)
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3.4
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Certificate of Amendment to Second Amended and
Restated Certificate of Incorporation (4)
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3.5
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By-Laws (5)
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4.1
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2005 Stock Option Plan (1)
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4.2
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2015 Incentive Stock Plan (6)
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4.3
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Form of Stock Option Agreement 2005 Incentive
Stock Plan*
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4.4
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Form of Stock Option Agreement 2015 Incentive
Stock Plan (7)
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5.1
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Opinion of Gracin & Marlow, LLP regarding
Legality of Shares*
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23.1
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Consent of RBSM, LLP, Independent Registered Public
Accounting Firm*
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23.2
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Consent of Gracin & Marlow, LLP (contained
in Exhibit 5.1)
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24.1
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Power of Attorney of directors and certain
officers of the Company (included on the signature page of this Registration Statement)
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————————
*Filed herewith
(1) Previously filed as Exhibits 3.5 and 4.3 to the Registrant’s
Form S-1 (File No. 333-179508) originally filed with the Securities and Exchange Commission on February 14, 2012
(2) Previously filed as Exhibits 3.1 to the Registrant’s
Current Report on Form 8-K (File No. 000-54748) filed with the Securities and Exchange Commission on December 5, 2014
(3) Previously filed as Exhibits 3.1 to the Registrant’s
Current Report on Form 8-K (File No. 000-54748) filed with the Securities and Exchange Commission on August 31, 2015
(4) Previously filed as Exhibits 3.1 to the Registrant’s
Current Report on Form 8-K (File No. 000-54748) filed with the Securities and Exchange Commission on March 26, 2015
(5) Previously filed as Exhibits 3.1 to the Registrant’s
Current Report on Form 8-K (File No. 000-54748) filed with the Securities and Exchange Commission on February 25, 2015
(6) Previously filed as Exhibit B to the Registrants Definitive
Information Statement on Schedule 14C (File No. 000-54748) filed with the Securities and Exchange Commission on March 2, 2016
(7) Previously filed as Exhibit 10.2 to the Registrant’s
Current Report on Form 8-K (File No. 000-54748) filed with the Securities and Exchange Commission on December 29, 2015
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
1. To file, during
any period in which offers or sales are being made, a post-effective amendment to this registration statement:
i. To include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended;
ii. To reflect in
the prospectus any facts or events arising after the effective date of this registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this
Registration Statement;
iii. To include
any material information with respect to the plan of distribution not previously disclosed in this registration statement or any
material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this Registration Statement.
2. That, for the purpose
of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
3. To remove from
registration by means of a post-effective amendment any of the securities being registered that remain unsold at the termination
of the offering.
4. That, for purposes
of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof.
5. Insofar as indemnification
for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the
Registrant, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection
with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the
requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Durham, North Carolina, on the 16
th
day of August, 2016.
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ICAGEN, INC.
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By:
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/s/ Richard Cunningham
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Name:
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Richard Cunningham
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Title:
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President and Chief Executive Officer
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(Principal Executive Officer)
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By:
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/s/ Mark Korb
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Name:
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Mark Korb
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Title:
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Chief Financial Officer
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(Principal Financial and Accounting Officer)
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POWER OF ATTORNEY AND SIGNATURES
KNOW
ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Richard Cunningham and Mark Korb,
and each of them, as his or her true and lawful attorneys-in-fact and agents, each with the full power of substitution, for him
or her and in his or her name, place or stead, in any and all capacities, to sign any and all amendments to this Registration Statement,
and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or his or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Richard Cunningham
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Chief Executive Officer (Principal Executive Officer) and Director
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August 16, 2016
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Richard Cunningham
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/s/ Mark Korb
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Chief Financial Officer (Principal Financial and Accounting Officer)
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August 16, 2016
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Mark Korb
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/s/ Timothy Tyson
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Non-Executive Chairman
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August 16, 2016
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Timothy Tyson
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/s/ Edward Roffman
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Director
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August 16, 2016
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Edward Roffman
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/s/ Vincent Palmieri
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Director
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August 16, 2016
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Vincent Palmieri
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/s/ Michael Taglich
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Director
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August 16, 2016
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Michael Taglich
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/s/ Clive Kabatznik
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Director
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August 16, 2016
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Clive Kabatznik
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/s/ Benjamin Warner
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Director
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August 16, 2016
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Benjamin Warner
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EXHIBIT INDEX
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Exhibit No.
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Description of Document
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3.1
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Second Amended and Restated Certificate of Incorporation
(1)
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3.2
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Certificate of Amendment to Second Amended and
Restated Certificate of Incorporation (2)
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3.3
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Certificate of Amendment to Second Amended and
Restated Certificate of Incorporation (3)
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3.4
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Certificate of Amendment to Second Amended and
Restated Certificate of Incorporation (4)
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3.5
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By-Laws (5)
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4.1
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2005 Stock Option Plan (1)
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4.2
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2015 Incentive Stock Plan (6)
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4.3
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Form of Stock Option Agreement 2005 Incentive
Stock Plan*
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4.4
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Form of Stock Option Agreement 2015 Incentive
Stock Plan (7)
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5.1
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Opinion of Gracin & Marlow, LLP regarding
Legality of Shares*
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23.1
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Consent of RBSM, LLP, Independent Registered Public
Accounting Firm*
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23.2
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Consent of Gracin & Marlow, LLP (contained
in Exhibit 5.1)
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24.1
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Power of Attorney of directors and certain
officers of the Company (included on the signature page of this Registration Statement)
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————————
*Filed herewith
(1) Previously filed as Exhibits 3.5 and 4.3 to the Registrant’s
Form S-1 (File No. 333-179508) originally filed with the Securities and Exchange Commission on February 14, 2012
(2) Previously filed as Exhibits 3.1 to the Registrant’s
Current Report on Form 8-K (File No. 000-54748) filed with the Securities and Exchange Commission on December 5, 2014
(3) Previously filed as Exhibits 3.1 to the Registrant’s
Current Report on Form 8-K (File No. 000-54748) filed with the Securities and Exchange Commission on August 31, 2015
(4) Previously filed as Exhibits 3.1 to the Registrant’s
Current Report on Form 8-K (File No. 000-54748) filed with the Securities and Exchange Commission on March 26, 2015
(5) Previously filed as Exhibits 3.1 to the Registrant’s
Current Report on Form 8-K (File No. 000-54748) filed with the Securities and Exchange Commission on February 25, 2015
(6) Previously filed as Exhibit B to the Registrants Definitive
Information Statement on Schedule 14C (File No. 000-54748) filed with the Securities and Exchange Commission on March 2, 2016
(7) Previously filed as Exhibit 10.2 to the Registrant’s
Current Report on Form 8-K (File No. 000-54748) filed with the Securities and Exchange Commission on December 29, 2015
Exhibit 4.3
CALDERA
PHARMACEUTICALS, INC.
NOTICE
OF STOCK OPTION AGREEMENT
(INCENTIVE
STOCK OPTION OR NONSTATUTORY STOCK OPTION)
Caldera
Pharmaceuticals, Inc.(the “
Company
”), pursuant to its 2005 Stock Option Plan (the “
Plan
”),
hereby grants to Optionholder an option to purchase the number of shares of the Company’s Common Stock set forth below.
This option is subject to all terms and conditions as set forth herein and in the related Option Agreement, the Plan and the Notice
of Exercise, each of which are attached hereto and incorporated herein in their entirety.
Optionholder:
Date
of Grant:
Vesting
Commencement Date:
Number
of Shares Subject to Option:
Exercise
Price (Per Share):
Expiration
Date:
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Type
of Grant:
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☐
Incentive
Stock Option
1
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☐
Nonstatutory
Stock Option
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Vesting
Schedule:
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Immediate as to all shares subject to the option
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Payment:
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By one or a combination of the following items (described in the Option Agreement):
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☐
By cash or check
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☐
By delivery of already owned shares
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☐
By
Cashless Exercise
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Additional
Terms/Acknowledgements:
The undersigned Optionholder acknowledges receipt of, and understands and agrees to, this Notice,
the Stock Option Agreement and the Plan. Optionholder further acknowledges that as of the Date of Grant, this Notice, the Stock
Option Agreement and the Plan set forth the entire understanding between Optionholder and the Company regarding the acquisition
of stock in the Company referred to herein and supersede all prior oral and written agreements on that subject.
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CALDERA
PHARMACEUTICALS, INC.
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OPTIONHOLDER:
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By:
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Name:
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Name:
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Date:
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Date:
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ATTACHMENTS:
2005 Stock Option Plan, Option
Agreement and Notice of Exercise
1
If this is an Incentive Stock Option,
it (plus other outstanding Incentive Stock Options) cannot be first
exercisable
for more than $100,000 in value (measured
by exercise price) in any calendar year. Any excess over $100,000 is a Non-statutory Stock Option.
CALDERA
PHARMACEUTICALS, INC.
STOCK
OPTION AGREEMENT
(INCENTIVE
STOCK OPTION OR NONSTATUTORY STOCK OPTION)
Pursuant
to this Option Agreement, Caldera Pharmaceuticals, Inc. (the
"
Company
")
has granted you an option under
its 2005 Stock Option Plan (the
"
Plan
")
to purchase the number of shares of the Company's Common Stock
indicated in the Notice at the exercise price indicated in the Notice. Defined terms not explicitly defined in this Option Agreement
but defined in the Plan shall have the same definitions as in the Plan.
The
details of your option are as follows:
1.
VESTING
.
Your Option shall fully vest and become exercisable with respect to all of your Option Shares as described in your employment
contract or other service agreement with the Company. For any shares not described in your employment or service agreement or
if you do not have an agreement with the Company, subject to the limitations contained herein, your option will vest as provided
in the Notice, provided that vesting will cease upon the termination of your employment, consulting arrangement or provision of
service for the Company, as applicable. Notwithstanding the foregoing, if you have been continuously employed by the Company or
an Affiliate or providing services to the Company or an Affiliate from the date of Grant until a Change in Control of the Company,
the portion of your outstanding Option which has not become vested at the date of such event shall immediately vest and become
exercisable with respect to 100% of the Shares simultaneously with the consummation of the Change in Control of the Company.
2.
NUMBER OF SHARES AND EXERCISE PRICE
. The number of shares of common stock (the “
Shares
”) subject
to your Option and your exercise price per share referenced in the Notice may be adjusted from time to time for certain events,
including such as stock dividends, split ups, mergers, and the other events specified in the Plan.
3.
METHOD OF PAYMENT
. Payment of the exercise price is due in full upon exercise of all or any part of your option. You may
elect to make payment of the exercise price in cash or by check or by delivery to the Company of certificates representing shares
of outstanding common stock of the Company already owned by you that are owned free and clear of any liens, claims, encumbrances
or security interests together with stock powers duly executed and with signature guaranteed. In addition, you may elect to make
payment through a “cashless exercise” such that, without the payment of any funds, you may exercise your Option and
receive the net number of Shares equal to (x) the number of Shares as to which the Option is being exercised, multiplied by (y)
a fraction, the numerator of which is the Fair Market Value per Share (on such date as is determined by the Board or a Committee
thereof if a Committee is designated to administer the Plan) less the Exercise Price per Share, and the denominator of which is
such Fair Market Value per Share (the number of net Shares to be received shall be rounded down to the nearest whole number of
Shares). In the event payment is made by delivery of such shares, said shares shall be deemed to have a per share value equal
to the per share market value of the shares on the date of exercise. Notwithstanding the foregoing, you may not exercise your
option by tender to the Company of common stock to the extent such tender would violate the provisions of any law, regulation
or agreement restricting the redemption of the Company's stock.
4.
WHOLE
SHARES
. You may exercise your Option only for whole shares of common stock.
5.
SECURITIES
LAW COMPLIANCE
. Notwithstanding anything to the contrary contained herein, you may not exercise your option unless the shares
of common stock issuable upon such exercise are then registered under the Securities Act or, if such shares of common stock are
not then so registered, the Company has determined that such exercise and issuance would be exempt from the registration requirements
of the Securities Act. The exercise of your option also must comply with other applicable laws and regulations governing your
option, and you may not exercise your option if the Company determines that such exercise would not be in material compliance
with such laws and regulations.
6.
TERM
. You may not exercise your Option before the commencement or after the expiration of its term. The term of your Option
commences on the Date of Grant and unless otherwise specified in the Notice expires upon the earliest of:
(a) Immediately
upon the termination of your employment or consulting arrangement or other arrangement for the provision of services;
(b)
The
Expiration Date indicated in the Notice; or
(c)
The
day before the tenth (10
th
)
anniversary of the Date of Grant.
If
your Option is an Incentive Stock Option, note that to obtain the federal income tax advantages associated with an Incentive Stock
Option, the Code requires that at all times beginning on the date of grant of your Option and ending on the day three (3) months
before the date of your Option's exercise, you must be an employee of the Company or an Affiliate, except in the event of your
death or Disability.
7.
EXERCISE
.
(a) You
may exercise the vested portion of your Option during its term by delivering a Notice of Exercise (in a form designated by the
Company) together with the exercise price to the Secretary of the Company, or to such other person as the Company may designate,
during regular business hours, together with such additional documents as the Company may then require. Each election to exercise
this Option shall be in writing, signed by you, and delivered or mailed to the Chief Financial Officer of the Company at its principal
office at One Kendall Square, Suite B2002, Cambridge, Massachusetts, 02139. In the event an Option is exercised by the executor
or administrator of your estate, or by the person or person to whom the Option has been transferred by your will or the applicable
laws of descent and distribution, the Company shall be under no obligation to deliver stock thereunder unless and until the Company
is satisfied that the person or person exercising the option is or are your duly appointed executor or administrator or the person
to whom the option has been transferred by your will or by the applicable laws of descent and distribution.
(b) By
exercising your Option you agree that, as a condition to any exercise of your Option, the Company may require you to enter into
an arrangement providing for the payment by you to the Company of any tax withholding obligation of the Company arising by reason
of (1) the exercise of your Option; (2) the lapse of any substantial risk of forfeiture to which the shares of Common Stock are
subject at the time of exercise; or (3) the disposition of shares of Common Stock acquired upon such exercise.
(c) If
your Option is an Incentive Stock Option, by exercising your Option you agree that you will notify the Company in writing within
fifteen (15) days after the date of any disposition of any of the shares of the Common Stock issued upon exercise of your option
that occurs within two (2) years after the date of your option grant or within one (1) year after such shares of Common Stock
are transferred upon exercise of your Option.
8.
PAYMENT
.
(a) Payment
in full by a certified or bank check should be made for all the shares of which your option is exercised at the time of such exercise,
and no shares shall be delivered until such payment is made.
(b) Alternatively,
payment may be made by delivering to the Company (i) shares of outstanding Common Stock of the Company together with stock powers
duly executed and with signature guaranteed. In the event payment is made in whole or in part by such shares, said shares shall
be deemed to have a per share value equal to the closing price of the shares on the last trading day immediately preceding the
date the shares are then being issued, or (ii) immediately tendering back to the Company sufficient shares of the Common Stock
acquired through exercise of the Option.
(c) The Company shall not be obligated to deliver any stock unless and until (i)
all applicable Federal and state laws and regulations have been complied with, and (ii) the Shares to be delivered have been listed,
or authorized to be added to the list by the applicable exchange where they are listed; and all legal matters in connection with
the issuance and delivery of the Shares have been approved by counsel for the Company. You shall have no rights as a shareholder
until the stock is actually delivered to you.
9.
TRANSFERABILITY
.
(a) If your Option is an Incentive Stock Option, your Option is not transferable, except by will or by the laws of descent and
distribution, and is exercisable during your life only by you. Notwithstanding the foregoing, by delivering written notice to
the Company, in a form satisfactory to the Company, you may designate a third party who, in the event of your death, shall thereafter
be entitled to exercise your option.
(b) If your Option is a Nonstatutory Stock Option, your Option is not transferable, except (i) by will or by the laws of descent
and distribution; (ii) with the prior written approval of the Company, by instrument to an
inter vivos
or testamentary
trust, in a form accepted by the Company, in which the option is to be passed to beneficiaries upon the death of the trustor (settlor);
and (iii) with the prior written approval of the Company, by gift, in a form accepted by the Company, to a permitted transferee
under Rule 701 of the Securities Act.
(c) You agree not to effect any public sale or distribution of any equity securities of the Company, or any securities convertible
into or exchangeable or exercisable for such securities, during the seven days prior to and the 180 days after the effectiveness
of any underwritten public offering of the Company’s equity securities (or such longer or shorter period as may be requested
in writing by the managing underwriter and agreed to in writing by the Company) (the “
Market Standoff Period
”),
except as part of such underwritten registration if otherwise permitted. In addition, you agree to execute any further letters,
agreements and/or other documents requested by the Company or its underwriters which are consistent with the terms of this
Section
9(c)
. The Company may impose stop-transfer instructions with respect to securities subject to the foregoing restrictions until
the end of such Market Standoff Period.
10.
TERMINATION.
(a) If
you are a consultant or directors and your relationship with the Company terminates for any reason your Option shall terminate
immediately. If you are an employee and your relationship with the Company terminates for any reason not listed below, your Option
shall terminate immediately.
(b) If
your employment is terminated by the Company without Cause or by you for any reason other than Retirement your Option shall terminate
on the ninetieth (90
th
) day after such termination and you may exercise your option prior to such time but only to
the extent to which you were entitled on the date of termination. If your employment is terminated due to Retirement your Option
shall terminate on the ninetieth (90
th
) day after the date of Retirement and you may exercise your option prior to
such time but only to the extent to which you were entitled on the date of termination. Nothing herein shall be construed as extending
the exercisability of your Option to a date that is after the expiration date of the Option set forth in this Agreement or a date
that is more than ten (10) years after your option is granted.
(c) If
your employment is terminated because of your disability, your option shall terminate one (1) year after such termination and
you may exercise your option prior to such time but only to the extent to which you were entitled on the date of such termination.
Nothing herein shall be construed as extending the exercisability of your Option to a date that is after the expiration date of
the option set forth in this Agreement or a date that is more than ten (10) years after the date your Option is granted.
(d) If
your employment is terminated as a result of your death, your Option shall terminate one (1) year after the anniversary of your
death, and your executor, administrator or other legal representative of your estate or the person or persons to whom your rights
under your Option shall pass by will or the laws of descent and distribution may exercise your option prior to such time but only
to the extent to which you were entitled on the date of termination. Nothing herein shall be construed as extending the exercisability
of your Option to a date to a date that is after the expiration date of the Option set forth in this Agreement or more than ten
(10) years after the date your Option is granted.
11.
OPTION NOT A SERVICE CONTRACT
. Your Option is not an employment or service contract, and nothing in your option shall
be deemed to create in any way whatsoever any obligation on your part to continue in the employ of the Company or an Affiliate,
or of the Company or an Affiliate to continue your employment. In addition, nothing in your Option shall obligate the Company
or an Affiliate, their respective stockholders, Boards of Directors, officers or employees to continue any relationship that you
might have as a Director or consultant for the Company or an affiliate.
12.
WITHHOLDING OBLIGATIONS
.
(a) At
the time you exercise your Option, in whole or in part, or at any time thereafter as requested by the Company, you hereby authorize
withholding from payroll and any other amounts payable to you, and otherwise agree to make adequate provision for any sums required
to satisfy the federal, state, local and foreign tax withholding obligations of the Company or an affiliate, if any, which arise
in connection with the exercise of your Option.
(b) Upon your request and subject to approval by the Company, in its sole discretion, and compliance with any applicable legal
conditions or restrictions, the Company may withhold from fully vested shares of Common Stock otherwise issuable to you upon the
exercise of your Option a number of whole shares of Common Stock having a fair market value, determined by the Company as of the
date of exercise based on the closing price of the shares on the last trading day immediately preceding the date the shares are
then being issued, not in excess of the minimum amount of tax required to be withheld by law (or such lower amount as may be necessary
to avoid classification of your Option as a liability for financial accounting purposes). If the date of determination of any
tax withholding obligation is deferred to a date later than the date of exercise of your Option, share withholding pursuant to
the preceding sentence shall not be permitted unless you make a proper and timely election under Section 83(b) of the Code, covering
the aggregate number of shares of Common Stock acquired upon such exercise with respect to which such determination is otherwise
deferred, to accelerate the determination of such tax withholding obligation to the date of exercise of your Option. Notwithstanding
the filing of such election, shares of Common Stock shall be withheld solely from fully vested shares of Common Stock determined
as of the date of exercise of your Option that are otherwise issuable to you upon such exercise. Any adverse consequences to you
arising in connection with such share withholding procedure shall be your sole responsibility.
(c) You may not exercise your Option unless the tax withholding obligations of the Company and/or any affiliate are satisfied.
Accordingly, you may not be able to exercise your Option when desired even though your Option is vested, and the Company shall
have no obligation to issue a certificate for such shares of Common Stock or release such shares of Common Stock from any escrow
provided for herein unless such obligations are satisfied.
13.
TAX
CONSEQUENCES
. You hereby agree that the Company does not have a duty to design or administer the Plan or its other compensation
programs in a manner that minimizes your tax liabilities. You shall not make any claim against the Company, or any of its Officers,
Directors, Employees or Affiliates related to tax liabilities arising from your option or your other compensation. In particular,
you acknowledge that this Option is exempt from Section 409A of the Code only if the exercise price per share specified in the
Notice is at least equal to the Fair Market Value per share of the Common Stock on the Date of Grant and there is no other impermissible
deferral of compensation associated with the option.
14.
NOTICES
.
Any notices provided for in your Option or the Plan shall be given in writing and shall be deemed effectively given upon receipt
or, in the case of notices delivered by mail by the Company to you, five (5) days after deposit in the United States mail, postage
prepaid, addressed to you at the last address you provided to the Company.
15.
GOVERNING
PLAN DOCUMENT
. Your Option is subject to all the provisions of the Plan, the provisions of which are hereby made a part of
your Option, and is further subject to all interpretations, amendments, rules and regulations, which may from time to time be
promulgated and adopted pursuant to the Plan. In the event of any conflict between the provisions of your Option and those of
the Plan, the provisions of the Plan shall control.
16
. RIGHTS
OF OPTIONEE.
This Agreement does not entitle you to any voting rights or, except for the foregoing notice provisions, any
other rights as a shareholder of the Company. No dividends are payable or will accrue on your Option or the Shares purchasable
under this Agreement until, and except to the extent that, your Option are exercised. Upon the surrender of your Option and payment
of the Exercise Price as provided above, the person or entity entitled to receive the shares of the Common Stock issuable upon
such exercise shall be treated for all purposes as the record holder of such shares as of the close of business on the date of
the surrender of your Option for exercise as provided above. Upon the exercise of your Option, you shall have all of the rights
of a shareholder in the Company.
17
. GOVERNING
LAW.
This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Delaware without
giving effect to its principles governing conflicts of law.
NOTICE OF EXERCISE
CALDERA PHARMACEUTICALS, INC.
Date of Exercise:
Ladies and Gentlemen:
This constitutes notice under my stock
option that I elect to purchase the number of shares for the price set forth below.
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Type of option (check one):
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Incentive ☐
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Nonstatutory ☐
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Stock option dated:
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Number of shares as to which option is exercised:
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Certificates to be issued in name of:
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Total exercise price:
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$
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Cash payment delivered herewith:
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$
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Value of ___ shares of Caldera. Pharmaceuticals, Inc
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$
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Number of shares of Caldera Pharmaceuticals, Inc. Delivered via cashless exercise
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By this exercise, I agree:
(i) to provide such additional documents as you may require pursuant to the terms of the 2005 Stock Option Plan; (ii) to provide
for the payment by me to you (in the manner designated by you) of your withholding obligation, if any, relating to the exercise
of this option; and (iii) if this exercise relates to an incentive stock option, to notify you in writing within fifteen (15)
days after the date of any disposition of any of the shares of Common Stock issued upon exercise of this option that occurs within
two (2) years after the date of grant of this option or within one (1) year after such shares of Common Stock are issued upon
exercise of this option.
2
Shares must be valued in accordance with the terms of the option being exercised, and must be owned free and clear
of any liens, claims, encumbrances or security interests. Certificates must be endorsed or accompanied by an executed assignment
separate from certificate.
I hereby make the following
certifications and representations with respect to the number of shares of Common Stock of the Company listed above (the
"
Shares
"),
which are being acquired by me for my own account upon exercise of the Option as set forth above:
I acknowledge that the
Shares have not been registered under the Securities Act of 1933, as amended (the “
Securities Act
”
),
and are deemed to constitute "restricted securities" under Rule 701 and Rule 144 promulgated under the Securities
Act. I warrant and represent to the Company that I have no present intention of distributing or selling said Shares, except as
permitted under the Securities Act and any applicable state securities laws.
I further acknowledge
that all certificates representing any of the Shares subject to the provisions of the Option shall have endorsed thereon appropriate
legends reflecting the foregoing limitations, as well as any legends reflecting restrictions pursuant to the Company's Articles
of Incorporation, Bylaws and/or applicable securities laws.
Very truly yours,
[Provision for Community Property Jurisdiction]
CONSENT
The undersigned spouse of
____________________ hereby acknowledges that I have read the foregoing Stock Option Agreement and that I understand its contents.
I am aware that the Agreement provides for the repurchase of my spouse’s shares of Common Stock under certain circumstances
and imposes other restrictions on the Transfer of such Common Stock. I agree that my spouse’s interest in the Common Stock
is subject to this Agreement and any interest I may have in such Common Stock shall be irrevocably bound by this Agreement and
further that the my community property interest, if any, shall be similarly bound by this Agreement.
I am aware that the legal,
financial and other matters contained in this Agreement are complex and I am free to seek advice with respect thereto from independent
counsel. I have either sought such advice or determined after carefully reviewing this Agreement that I will waive such right.
