exv4w5



 





Exhibit 4.5




DIACRIN, INC.




NON-STATUTORY STOCK OPTION AGREEMENT




     1. Grant of Option. Diacrin, Inc., a Delaware corporation (the
“Company”), hereby grants to Dr. Denise Faustman (the “Optionee”) an option to
purchase an aggregate of Four Hundred Twenty Eight Thousand Two Hundred and
Eleven (428,211) shares of Common Stock (“Common Stock”) of the Company at a
price of $1.25 per share (the “Option Price”), purchasable as set forth in and
subject to the terms and conditions of this Agreement.



     2. Non-Statutory Stock Option. This option is not intended to qualify as
an incentive stock option within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the “Code”)



     3. Exercise of Option and Provisions for Termination. Subject to the
conditions set forth in this Agreement, this option shall be exercised by the
Optionee’s delivery of written notice of exercise to the Treasurer of the
Company, specifying the number of shares to be purchased and the purchase price
to be paid therefor and accompanied by payment fin full in accordance with
Section 4. Such exercise shall be effective upon receipt by the Treasurer of
the Company of such written notice together with the required payment. The
Optionee may purchase less than the number of shares covered hereby, provided
that no partial exercise of this option may be for any fractional share or for
fewer than ten whole shares. Except as otherwise provided in this Agreement,
this option may be exercised prior to the tenth anniversary of the date of
grant (the “Expiration Date”).



     4. Payment of Purchase Price. Payment of the Option Price for shares
purchased upon exercise of this option shall be made by delivery to the Company
of cash or a check to the order of the Company, or pursuant to an Option Price
Credit (as defined below), or a combination thereof, in an amount equal to the
Option Price of such shares. In the event that the Optionee renders consulting
services to the Company at the Company’s request; the Optionee may elect to
forego cash payment for such services and receive a credit against the payment
of the Option Price in the amount of $250 for each hour of consulting services
so rendered (the “Option Price Credit”). The Optionee shall notify the Company
in writing prior to rendering any consulting services requested by the Company
as to whether she desires to receive an Option price Credit in connection with
such services.



     5. Delivery of Shares; Compliance With Securities Laws, Etc.



               a. General. The Company shall, upon payment of the Option Price for the
number of shares purchased and paid for, make prompt delivery of such shares to
the Optionee, provided that if any law or regulation requires the Company to
take any action with respect to such shares before the issuance thereof, then
the date of delivery of such shares shall be extended for the period necessary
to complete such action.



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               b. Listing, Qualification, Etc. This option shall be subject to the
requirement that if, at any time, counsel to the Company shall determine that
the listing, registration or qualification of the shares subject hereto upon
any securities exchange or under any state or federal law, or the consent of
approval of any governmental or regulatory body, or that the disclosure of
non-public information or the satisfaction of any other condition is necessary
as a condition of, or in connection with, the issuance or purchase of shares
hereunder, this option may not be exercised, in whole or in part, unless such
listing, registration, qualification, consent or approval, disclosure or
satisfaction of such other condition shall have been effected or obtained on
terms acceptable to the Board of Directors of the Company, provided that the
Expiration Date shall be extended for the duration of the period, if any,
between the receipt of Optionee’s notice of exercise and the satisfaction by
the Company of the conditions referred to in this subsection. Nothing herein
shall be deemed to require the Company to apply for, effect or obtain such
listing, registration, qualification or disclosure, or to satisfy such other
condition, provided that if the Common Stock, at the time of exercise of this
option is listed or qualified on any securities exchange, the Company shall, to
the extent permissible by the rules of such exchange, include the shares
issuable upon exercise of this option in such listing or qualification. The
Company agrees to use its best efforts to include the shares of Common Stock
issuable upon exercise of this option in any registration statement on Form S-8
(or any successor form thereto) filed under the Securities Act of 1933, as
amended, with respect to the Company’s option plans, but only to the extend the
Company is permitted to include such shares on such Form under applicable
Securities and Exchange Commission rules and regulations, provided that nothing
in this sentence shall be construed to require the Company to file any such
registration statement.



     6. Nontransferability of Option. This option is personal and no rights
granted hereunder may be transferred, assigned, pledged or hypothecated in any
way (whether by operation of law or otherwise) nor shall any such rights be
subject to execution, attachment or similar process, except that this option
may be transferred (i) by will or the laws of descent and distribution or (ii)
pursuant to a qualified domestic relations order as defined in Section 414(p)
of the Code. Upon any attempt to transfer, assign, pledge, hypothecate or
otherwise dispose of this option or of such rights contrary to the provisions
hereof, or upon the levy of any attachment or similar process upon this option
or such rights, this option and such rights shall, at the election of the
Company, become null and void.



     7. No Special Consulting or Similar Rights. Nothing contained in this
Agreement shall be construed or deemed by any person under any circumstances to
bind the Company to enter into or maintain any consulting or other relationship
with the Optionee for the period within which this option may be exercised.



     8. Rights as a Shareholder. The Optionee shall have no rights as a
shareholder with respect to any shares which may be purchased by exercise of
this option (including, without limitation, any rights to receive dividends or
non-cash distributions with respect to such shares) unless and until a
certificate representing such shares is duly issued and delivered to the
Optionee. No adjustment shall be made for dividends or other rights for which
the record date is prior to the date such stock certificate is issued.



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     9. Restriction on Sales of Shares.



               a. Definitions. As used herein, the following terms shall have the
following respective meanings:




          (1) Group shall mean (A) the Optionee, (B) the spouse, parents,
siblings and lineal descendants of the Optionee, (C) a trust for the
benefit of any of the foregoing and (D) any distributee, legatee or
devisee of the Optionee, in each case who agrees in writing to be bound
by and comply with this Agreement to the same extent as the Optionee.




          (2) Sale/Sell, as to any Share, shall mean to sell, or in any other
way directly or indirectly transfer, assign, distribute, encumber or
otherwise dispose of, either voluntarily or involuntarily; provided,
however, that the Optionee shall not be deemed to Sell the Shares if such
Shares are transferred to a member of the Group of the Optionee and such
person agrees to be bound by the terms of this Agreement to the same
extent as the Optionee.




          (3) Selling Group shall mean the Group of the Optionee proposing to
Sell any of the Shares, or which has delivered a notice of intention to
Sell, pursuant to Section 9(c) hereof.




          (4) Shares shall mean all shares of Common Stock acquired by the
Optionee pursuant to this Agreement.



               b. Restriction on Sale. The Optionee hereby agrees that she shall not
Sell any Shares except to a member of the Group of the Optionee (provided such
member shall agree in writing in advance of any Sale of Shares hereunder that
such member shall be bound by and comply with the terms and provisions hereof
as if such member were the Optionee hereunder), or except in accordance with
the provisions of Section 9(c).



               c. Procedures on Sale of Stock to Third Parties. Except as otherwise
expressly provided herein, the Optionee hereby agrees, and each member of the
Group to which the Optionee belongs shall be deemed to agree, that she, he or
it shall not Sell any Shares except in accordance with the following
procedures:




          (i) The Selling Group shall first deliver to the Company a
written notice, which shall be irrevocable through the date of sale
set forth in Section 9(c)(iii) below, offering all or any part of the
Shares owned by the Selling Group at the purchase price and on the
terms specified therein, whereupon the Company shall have the right
and option to purchase all or any portion of the Shares so offered at
the purchase price and on the terms stated in the notice of intention
to Sell (such acceptance to be made by the delivery of a written
notice to the Selling Group within the 30-day period after delivery of
the aforesaid notice of intention to sell, which acceptance shall
indicate the number of Shares to be purchased).




          (ii) The Company shall have the right to assign its right to
purchase Shares pursuant to Section 9(c)(i) above to one or more
persons or entities, including to stockholders of the Company.



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          (iii) Sales of Shares under the terms of Section 9(c)(i) above
shall be made at the offices of the Company on a mutually satisfactory
business day within 30 days after the expiration of the aforesaid
30-day period, or on such earlier dates following expiration of the
30-day period in Section 9(c)(i) above as may be agreed upon by the
Company. Delivery of certificates or other instruments evidencing
such Shares duly endorsed for transfer to the Company shall be made on
such date against payment of the purchase price therefor by check or
wire transfer of funds.




          (iv) If effective acceptance shall not be received pursuant to
Section 9(c)(i) above with respect to the Shares offered for sale
pursuant to the aforesaid written notice, then the Selling Group may
Sell all or any part of the remaining Shares so offered for sale at a
price not less that the price, and on terms not more favorable to the
purchaser thereof, than the terms, stated in the written notice of
intention to Sell, at any time within 90 days after the expiration of
the offer made pursuant to Section 9(c)(i) above. In the event of the
remaining Shares are not sold by the Selling Group to Sell such
remaining shares shall expire and the obligations of this Section 9(c)
shall be reinstated; provided, however, that in the event the Selling
Group determines, at any time during such 90-day period, the sale of
all or any part of the remaining Shares on the terms set forth in the
written notice of intention to Sell is impractical, the Selling Group
may terminate the offer and reinstate the procedure provided in this
Section 9(c) without waiting for the expiration of such 90-day period.




          (v) Notwithstanding anything contained herein to the contrary,
any purchaser of Shares shall agree in writing in advance of any
purchase of Shares hereunder that it or he, as the case may be, shall
be bound by and comply with the terms and provisions of this Agreement
as if such purchaser were the “Optionee” hereunder, and the Shares so
purchased shall continue to be subject to repurchase as herein
provided.




          (vi) Notwithstanding anything contained herein to the contrary,
the right of the Company to purchase Shares owned by the Selling Group
pursuant to this Section 9(c) shall terminate effective as of the
closing of the Company’s initial public offering of Common Stock
pursuant to a registration statement filed under the Securities Act of
1933, as amended.



          d. Escrow Arrangement; Distributions; Rights as a Stockholder.




          (i) All of the certificates representing the Shares, duly
endorsed in blank or with undated stock powers attached thereto, shall
be held in escrow by an independent escrow agent mutually acceptable
to the Company and the Optionee until (A) such Shares are repurchased
by the Company as provided in Section 9(c) hereof or (b) if earlier,
the expiration of the period(s) during which the Company may
repurchase Shares hereunder. All fees charged by the escrow agent and
expenses relating thereto shall be paid by the Company.




          (ii) Except for the restrictions contained in this Agreement,
upon exercise of the Option with respect to any Shares, the Optionee
shall have all the rights as a
stockholder of such Shares, subject to any limitations imposed
thereon by the Certificate of Incorporation of the Company.



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     10. Adjustment Provisions.



               a. Changes in Capital Structure. Subject to Section 10(b), in the event
the Common Stock is changed by reason of a stock split, reverse stock split,
stock dividend or recapitalization, or converted into or exchanged for other
securities as a result of a merger, consolidation or reorganization, the Board
of Directors of the Company shall make such adjustment in the number and class
of shares of stock with respect to which Options may be granted under this
Agreement as shall be equitable and appropriate in order to make this option,
as nearly as may be practicable, equivalent to the option outstanding
immediately prior to such change. A corresponding adjustment changing the
number and class of shares allocated to, and the option price of, this option
or portion thereof outstanding at the time of such change shall likewise be
made.



               b. Corporate Transactions. The following rules shall apply in connection
with the dissolution or liquidation of the Company, a reorganization, merger or
consolidation in which the Company is not the surviving corporation, a sale of
all or substantially all of the assets of the Company to another person or
entity, or a transaction in which all of the stockholders of the Company
exchange their Common Stock for cash and/or securities (a “Corporate
Transaction”):




          (i) In the event the Company is party to a merger or other
reorganization, this option shall be subject to the agreement of
merger or reorganization. Unless otherwise provided in such agreement
of merger or reorganization, subject to Section 10(b)(ii) hereof, upon
the occurrence of a Corporate Transaction, this option shall
automatically terminate; provided, however, that the Optionee shall
either (A) be given (I) written notice of such Corporate Transaction
at least 20 days prior to its proposed effective date (as specified in
such notice) and (II) an opportunity, during the period commencing
with delivery of such notice and ending ten days prior to such
proposed effective date, to exercise this option to the full extent to
which this option would have been exercisable by the Optionee at the
expiration of such 20-day period, or (B) be paid in cash or securities
an amount equal to the excess of the fair market value (as determined
by the Board of Directors of the Company as of the date of the
Corporate Transaction) of the shares of Common Stock with respect to
which this option is then exercisable over the option price of such shares; and




          (ii) Provisions may be made in connection with such Corporate
Transaction for the assumption of this option by, or the substitution
for this option of, new options covering the stock of, the surviving,
successor or purchasing corporation, or a parent or subsidiary
thereof, with appropriate adjustments as to the number, kind and
option price prices of shares subject to this option.



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               c. Special Rules. The following rules shall apply in connection with
Section 10(a) and (b) above:




          (i) No fractional shares shall be issued as a result of any such
adjustment, and any fractional shares resulting from the computations
pursuant to Section 10(a) or (b) shall be eliminated;




          (ii) No adjustment shall be made for cash dividends or the
issuance to stockholders of rights to subscribe for additional shares
of Common stock or other securities; and




          (iii) Any adjustments referred to in Section 10(a) or (b) shall
be made by the Board of Directors in its sole discretion and shall be
conclusive and binding on the Optionee.



     11. Withholding Taxes. The Company’s obligation to deliver shares upon
the exercise of this option shall be subject to the Optionee’s satisfaction of
applicable federal, state and local income tax withholding requirements, if
any.



     12. Investment Representations; Legends.



               a. Representations. The Optionee represents, warrants and covenants
that:




          (i) Any shares purchased upon exercise of this option shall be
acquired for the Optionee’s account for investment only, and not with
a view to, or for sale in connection with, any distribution of the shares in violation of the Securities Act of 1933 (the “Securities
Act”), or any rule or regulation under the Securities Act.




          (ii) The Optionee has had such opportunity as she has deemed
adequate to obtain from representatives of the Company such
information as is necessary to permit the Optionee to evaluate the
merits and risks of her investment in the Company.




          (iii) The Optionee is able to bear the economic risk of holding
such shares acquired pursuant to the exercise of this option for an
indefinite period.




          (iv) The Optionee understands that (A) the shares acquired
pursuant to the exercise of this option will not be registered under
the Securities Act and are “restricted securities” within the meaning
of Rule 144 under the Securities Act; (B) such shares cannot be sold,
transferred or otherwise disposed of unless they are subsequently
registered under the Securities Act or an exemption from registration
is then available; (C) in any event, an exemption from registration
under Rule 144 or otherwise under the Securities Act will not be
available for at least two years and even then will not be available
unless a public market then exists for the Common Stock, adequate
information concerning the Company is then available to the public,
and other terms and conditions of Rule 144 are complied with; and (D)
there is now no registration statement on file with the Securities and
Exchange Commission with respect to any stock of the Company and the
Company has no obligation or current intention to register any shares
acquired pursuant to the exercise of this option under the Securities
Act.



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          (v) The Optionee agrees that, if the Company offers any of its
Common Stock for sale pursuant to a registration statement under the
Securities Act, the Optionee will not, without the prior written
consent of the Company, offer, sell, contract to sell or otherwise
dispose of, directly or indirectly, any shares purchased upon exercise
of this option for a period of 180 days (or such lesser period as the
Company’s officers, directors and other significant stockholders may
agree upon with the underwriters in such offering) after the effective
date of such registration statement.


By making payment upon exercise of this option, the Optionee shall be deemed to
have reaffirmed, as of the date of such payment, the representations,
warranties and covenants made in this Section 12.




               b. Legend on Stock Certificate. All stock certificates representing
shares of Common Stock issued to the Optionee upon exercise of this option
shall have affixed thereto legends substantially in the following forms, in
addition to any other legends required by applicable law:



“THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, THE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT
AND MAY NOT BE PLEDGED, HYPOTHECATED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SHARES UNDER SUCH ACT
OR AN OPINION OF COUNSEL TO THE ISSUER THAT
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT.
ADDITIONALLY, THE TRANSFER OF THE SHARES REPRESENTED
BY THIS CERTIFICATE ARE RESTRICTED PURSUANT TO THE
PROVISIONS SPECIFIED IN THE NON-QUALIFIED STOCK OPTION
AGREEMENT, DATED AS OF DECEMBER 10, 1993 BETWEEN
DIACRIN, INC. AND DR. DENISE FAUSTMAN, AND NO TRANSFER
OF THESE SHARES SHALL BE VALID OR EFFECTIVE UNTIL SUCH
CONDITIONS HAVE BEEN FULFILLED. COPIES OF SUCH
AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN
REQUEST MADE BY THE HOLDER OF RECORD OF THIS
CERTIFICATE TO THE SECRETARY OF DIACRIN, INC.”



     13. Miscellaneous.



               a. Except as provided herein, this option may not be amended or otherwise
modified unless evidenced in writing and signed by the Company and the
Optionee.



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               b. All notices under this option shall be mailed or delivered by hand to
the parties at their respective addresses set forth beneath their names below
or at such other address as may be designated in writing by either of the
parties to one another.



               c. This option shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts.



	 	 	 	 	 
	Date of Grant:	 	DIACRIN, INC.
	 
	 	 	 	 
	December 10, 1993

	 	By:
	 	/s/ Thomas H. Fraser
	

	 	 	 	

	 
	 	 	 	 
	

	 	Title:
	 	President and Chief
	

	 	 	 	Executive Officer
	 
	 	 	 	 
	

	 	Address:
	 	Building 96-13th Street
	

	 	 	 	Charlestown Navy Yard
	

	 	 	 	Charlestown, MA 02129
	 
	 	 	 	 
	 	 	/s/ Denise Faustman
	 	 	

	 	 	Denise Faustman, M.D., Ph.D.
	 
	 	 	 	 
	

	 	Address:
	 	Immunobiology Laboratory
	

	 	 	 	Massachusetts General
	

	 	 	 	Hospital
	

	 	 	 	MGH East
	

	 	 	 	Building 149, 3rd Floor
	

	 	 	 	Charlestown, MA 02129







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