Exhibit
10.40


 


STOCK
OPTION AGREEMENT, made as of the 13th day of August, 2015, between BIORESTORATIVE THERAPIES, INC., a Delaware
corporation (the “Company”), and ROBERT PACCASASSI (the “Optionee”).


 





 



 


WHEREAS,
the Optionee has been offered employment with the Company or a parent or subsidiary thereof; and


 


WHEREAS,
the Company desires to provide to the Optionee an additional incentive to promote the success of the Company.


 


NOW,
THEREFORE, in consideration of the foregoing, the Company hereby grants to the Optionee the right and option to purchase
shares of Common Stock of the Company under and pursuant to the terms and conditions of the Company’s 2010 Equity Participation
Plan (the “Plan”) and upon and subject to the following terms and conditions:


 


1.
GRANT OF OPTION. The Company hereby grants to the Optionee the right and option (the “Option”) to purchase
up to Five Thousand (5,000) shares of Common Stock of the Company (the “Option Shares”) during the following periods:


 


(a)
All or any part of One Thousand Six Hundred Sixty-Seven (1,667) shares of Common Stock may be purchased during the period commencing
at 12:01 A.M. on August 13, 2016 and terminating at 5:00 P.M. on August 13, 2025 (the “Expiration Date”).


 


(b)
All or any part of One Thousand Six Hundred Sixty-Seven (1,667) shares of Common Stock may be purchased during the period commencing
at 12:01 A.M. on August 13, 2017 and terminating at 5:00 P.M. on the Expiration Date.


 


(c)
All or any part of One Thousand Six Hundred Sixty-Six (1,666) shares of Common Stock may be purchased during the period commencing
at 12:01 A.M. on August 13, 2018 and terminating at 5:00 P.M. on the Expiration Date.


 


2.
NATURE OF OPTION. The Option is not intended to meet the requirements of Section 422 of the Internal Revenue Code
of 1986, as amended, relating to “incentive stock options”.


 


3.
EXERCISE PRICE. The exercise price of each of the Option Shares shall be Eight Dollars and Seventy-Five Cents ($8.75)
(the “Exercise Price”). The Company shall pay all original issue or transfer taxes on the exercise of the Option.


 


4.
EXERCISE OF OPTIONS. (a) The Option shall be exercised in accordance with the provisions of the Plan. As soon as
practicable after the receipt of notice of exercise and payment of the Exercise Price as provided for in the Plan, the Company
shall tender to the Optionee a certificate issued in the Optionee’s name evidencing the number of Option Shares covered
thereby.


 




    	 	 	 



    	 	 	 



    

 


(b)
The Company agrees that, as contemplated in Section 13(b) of the Plan, the Optionee may elect to have the Company reduce the number
of Option Shares otherwise issuable by a number of Option Shares having a Fair Market Value (as defined in the Plan) equal to
the exercise price of the Option being exercised. In the event of such election, the Company shall issue to the Optionee a number
of Option Shares computed using the following formula:


 


	 	X	=
    	Y
    (A-B)
	 	 	 	     A
	 	 	 	 
		Where
    X	=	the
    number of Option Shares to be issued to the Optionee
	 	 	 	 
	 	Y	=	the
    number of Option Shares subject to this Option (or the portion thereof being cancelled)
	 	 	 	 
	 	A	=	the
    Fair Market Value of one Option Share
	 	 	 	 
	 	B	=	the
    Exercise Price


 


5.
TRANSFERABILITY. The Option shall not be transferable other than by will or the laws of descent and distribution
and, during the Optionee’s lifetime, shall not be exercisable by any person other than the Optionee.


 


6.
COMMENCEMENT OF EMPLOYMENT. Notwithstanding anything herein to the contrary, in the event the Optionee does not
commence employment with the Company, the Option shall be considered null and void.


 


7.
TERMINATION OF EMPLOYMENT. To the extent the Option has become exercisable at the time of any termination of employment
with the Company or its subsidiaries for any reason whatsoever, the Option shall remain exercisable until twelve (12) months following
such termination but in no event shall the Option be exercisable after the Expiration Date.


 


8.
INCORPORATION BY REFERENCE. The terms and conditions of the Plan are hereby incorporated by reference and made a
part hereof.


 


9.
NOTICES. Any notice or other communication given hereunder shall be deemed sufficient if in writing and hand delivered
or sent by registered or certified mail, return receipt requested, addressed to the Company, 40 Marcus Drive, Suite One, Melville,
New York 11747, Attention: Chief Executive Officer, and to the Optionee at the address indicated below. Notices shall be deemed
to have been given on the date of hand delivery or mailing, except notices of change of address, which shall be deemed to have
been given when received.


 


10.
BINDING EFFECT. This Stock Option Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective legal representatives, successors and assigns.


 




    	 	2	 



    	 	 	 



    

 


11.
ENTIRE AGREEMENT. This Stock Option Agreement, together with the Plan, contains the entire understanding of the
parties hereto with respect to the subject matter hereof and may be modified only by an instrument executed by the party sought
to be charged.


 


12.
GOVERNING LAW. This Stock Option Agreement shall be governed by, and construed in accordance with, the laws of the
State of Delaware, excluding choice of law rules thereof.


 


13.
EXECUTION IN COUNTERPARTS. This Stock Option Agreement may be executed in counterparts, each of which shall be deemed
to be an original, but both of which together shall constitute one and the same instrument.


 


14.
FACSIMILE SIGNATURES. Signatures hereon which are transmitted via facsimile, or other electronic image, shall be
deemed original signatures.


 


15.
INTERPRETATION; HEADINGS. The provisions of this Stock Option Agreement shall be interpreted in a reasonable manner
to give effect to the intent of the parties hereto. The headings and captions under sections and paragraphs of this Stock Option
Agreement are for convenience of reference only and do not in any way modify, interpret or construe the intent of the parties
or affect any of the provisions of this Stock Option Agreement.


 


[Remainder
of page intentionally left blank; signature page follows]


 




    	 	3	 



    	 	 	 



    

 


IN
WITNESS WHEREOF, the parties have executed this Stock Option Agreement as of the day and year first above written.


 


	 	BIORESTORATIVE
    THERAPIES, INC.
	 	 	 
	 	By:	 
	 	Name:
    	Mark
    Weinreb
	 	Title:
    	Chief
    Executive Officer
	 	 	 
	 	 	 
	 	 	Signature
    of Optionee
	 	 	 
	 	 	Robert
    Paccasassi
	 	 	Name
    of Optionee
	 	 	 
	 	 	 
	 	 	Address
    of Optionee


 




    	 	4