exv10w187



 






Exhibit 10.187




THE IMMUNE RESPONSE CORPORATION

INDUCEMENT STOCK OPTION GRANT NOTICE




     THE IMMUNE RESPONSE CORPORATION, a Delaware corporation (the “Company”), hereby grants to the
Optionee an option to purchase the number of shares of the Company’s Common Stock set forth below.
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”), but is intended to qualify as an
“employee benefit plan” within the meaning of Rule 405 under the Securities Act of 1933. This
option is an “inducement grant” under Nasdaq Marketplace Rule 4350(i)(1)(A)(iv) and is granted
outside of, and is not subject to, the Company’s 1989 Stock Plan or the Company’s 2003 Stock Plan.



     This option is subject to all of the terms and conditions set forth herein and in the
Inducement Stock Option Agreement, which is attached hereto as Attachment I and incorporated herein
in its entirety.



	 	 	 	 	 
	Optionee:

	 	Joseph F. O’Neill

	 
	 	 	 	 
	Date of Grant:

	 	October 31, 2005

	 
	 	 	 	 
	Vesting Commencement Date:

	 	October 31, 2005

	 
	 	 	 	 
	Number of Shares Subject to Option:

	 	 	6,000,000	 
	 
	 	 	 	 
	Exercise Price (Per Share):

	 	$	0.32	 
	 
	 	 	 	 
	Total Exercise Price:

	 	$	1,920,000	 
	 
	 	 	 	 
	Expiration Date:

	 	October 31, 2015







     VESTING SCHEDULE: The Option shall vest with respect to 3,000,000 of the underlying shares in
8 equal quarterly installments from the Vesting Commencement Date and shall vest with respect to
the other 3,000,000 shares in a lump sum on October 31, 2012, all subject to the Optionee’s
“Continuous Service as CEO” (as defined in the attached Stock Option Agreement). It is understood
that Optionee and the Company may, in the future, mutually agree upon key performance milestones
relative to the “other” (7-year) 3,000,000 underlying shares, and if they do so agree then this
Grant Notice may be amended by the parties in writing to provide for possible earlier vesting of
some or all of such underlying shares upon attainment of some or all of the milestones (but always
also subject to the backstop 7-year vesting).



     PAYMENT: Payment of the exercise price may be made in cash, check or any other method provided
in the Stock Option Agreement.



     ADDITIONAL TERMS/ACKNOWLEDGEMENTS: The undersigned Optionee acknowledges receipt of, and
understands and agrees to, this Grant Notice and the Stock Option



 









 







Agreement. This Option is granted pursuant to the Offer Letter (defined below) and Optionee
acknowledges that as of the Date of Grant, this Grant Notice and the Stock Option Agreement set
forth the entire understanding between Optionee and the Company regarding the acquisition of stock
in the Company and supersede all prior oral and written agreements on that subject.



     OTHER AGREEMENTS: Offer Letter, dated October 26, 2005 (the “Offer Letter”).



	 	 	 	 	 	 	 
	 	 	THE IMMUNE RESPONSE CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Michael K. Green
 

	 	 
	 

	 	Title
	 	Chief Operating Officer &
Chief Financial Officer
 

	 	 






OPTIONEE




	 	 	 
	/s/ Joseph F. O’Neill
 


	 	 
	Joseph F. O’Neill
	 	 






[SIGNATURE PAGE TO INDUCEMENT STOCK OPTION GRANT NOTICE]




2









 








Attachment I



THE IMMUNE RESPONSE CORPORATION

INDUCEMENT STOCK OPTION AGREEMENT



     Pursuant to your Inducement Stock Option Grant Notice (“Grant Notice”), which incorporates
this Inducement Stock Option Agreement, THE IMMUNE RESPONSE CORPORATION, a Delaware corporation
(the “Company”), has granted you an option to purchase the number of shares of the Company’s common
stock (“Common Stock”) indicated in your Grant Notice at the exercise price indicated in your Grant
Notice. 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”), but is intended to
qualify as an “employee benefit plan” within the meaning of Rule 405 under the Securities Act of
1933 (the “Securities Act”). This option is an “inducement grant” under Nasdaq Marketplace Rule
4350(i)(1)(A)(iv) and is granted outside of, and is not subject to, the Company’s 1989 Stock Plan
or the Company’s 2003 Stock Plan.



     The details of your option are as follows:



     1. VESTING. Subject to the limitations contained herein, your option will vest and become
exercisable as provided in your Grant Notice, provided that vesting will cease upon the termination
of your Continuous Service as CEO (as defined in Section 6 below).



     2. NUMBER OF SHARES AND EXERCISE PRICE. The number of shares of Common Stock subject to your
option and your exercise price per share are set forth in your Grant Notice and may be adjusted
from time to time for Capitalization Adjustments, as provided in Section 9 below.



     3. FORM OF PAYMENT. When you submit your notice of exercise, you must include payment of the
option price for the shares you are purchasing. Payment may be made in one (or a combination of two
or more) of the following forms, to the extent permitted now or hereafter by applicable law:



          (a) by personal check, a cashier’s check or money order; or




          (b) by cashless same-day-sale exercise, whereby you provide irrevocable direction to a
securities broker approved by the Company to sell shares of common stock underlying the Option and
to deliver part or all of the sales proceeds to the Company in payment of all or part of the
Exercise Price and any withholding taxes, provided that no such arrangement may result in the
Company extending or arranging for the extension of credit.




     4. WHOLE SHARES. You may exercise your option only for whole shares of Common Stock.



     5. SECURITIES LAW COMPLIANCE; INVESTMENT INTENT.



          (a) 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 must also 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 compliance with such laws and
regulations.




          (b) You represent that you are acquiring this option and, when and if you exercise this
option, the shares of Common Stock issuable upon exercise of this option for your own account and
not with a view to, or for sale in connection with, any distribution of such securities.




     6. TERM. The term of your option commences on the Date of Grant (as specified in your Grant
Notice) and expires on the earlier of the following:



          (a) For all vested but unexercised shares, three months after the termination of your
Continuous Service as CEO; provided that if during any part of such three month period your option
is not exercisable solely because of the condition set forth in the preceding paragraph relating to
“Securities Law Compliance,” your option shall not expire until the earlier of the Expiration Date
indicated in your Grant Notice or until it shall have been exercisable for an aggregate period of
three months after the termination of your Continuous Service as CEO;




          (b) the Expiration Date indicated in your Grant Notice.




          For purposes of this option, “Continuous Service as CEO” means that your service as Chief
Executive Officer of the Company is not interrupted or terminated. Provided, that for the purpose
of the preceding sentence, service as President shall be deemed to constitute service as Chief
Executive Officer, even if you no longer formally hold the title of Chief Executive Officer. The
Board of Directors of the Company, in its sole discretion, shall determine whether Continuous
Service as CEO has been interrupted or terminated. Any such interruption or termination, for any
reason whatsoever, can break Continuous Service as CEO. For the avoidance of doubt, there is no
agreement entitling you to continue to serve as Chief Executive Officer and/or President. The
Board of Directors has discretion whether or not to re-elect or remove you as Chief Executive
Officer and/or President.




     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.




          (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.




     8. TRANSFERABILITY. 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, subject to the terms and conditions otherwise applicable to the exercise of this
option, the issuance of Common Stock pursuant to such exercise and the subsequent transfer of such
Common Stock.



     9. CAPITALIZATION ADJUSTMENTS. If any change is made in the Common Stock subject to this
option without the receipt of consideration by the Company (through merger, consolidation,
reorganization, recapitalization, reincorporation, stock dividend, dividend in property other than
cash, stock split, liquidating dividend, combination of shares, exchange of shares, change in
corporate structure or other transaction not involving the receipt of consideration by the
Company), this Stock Option Agreement will be appropriately adjusted in the class(es) and number of
shares and price per share of stock subject to the option. Such adjustments shall be made by the
Board, the determination of which shall be final, binding and conclusive. (The conversion of any
convertible securities or net-exercise of any exercisable securities of the Company shall not be
treated as a transaction “without receipt of consideration” by the Company.)



     10. CHANGE OF CONTROL. Upon the occurrence of a Change of Control, the vesting of the Option
shall be accelerated in full and all options so vested or previously vested shall continue to be
exercisable for a period of six months or until the applicable expiration date of the options (in
accordance with the terms of the Grant Notice and this agreement), whichever period is shorter.
For purposes of this option, a “Change of Control” shall have the meaning set forth in the
Company’s offer letter to you, dated October 26, 2005 (the “Offer Letter”). Notwithstanding
anything herein to the contrary, in the event of a Change of Control pursuant to which 100% of the
outstanding stock of the Company is acquired, you shall be entitled to receive, upon exercise
during such period, instead of the indicated number of shares of common stock of the Company,
whatever consideration was given in the Change of Control in exchange for such number of shares of
common stock of the Company.



     11. OPTION NOT A SERVICE CONTRACT. Nothing in your option shall obligate the Company, its
stockholders or the Board to continue your service as Chief Executive Officer, President or a
director or to continue any other relationship that you might have with the Company.



     12. ACCELERATION OF EXERCISABILITY AND VESTING. The Board shall have the power to accelerate
the time at which the option may first be exercised or the time during which the option or any part
thereof will vest, notwithstanding the provisions in the Grant Notice or this Stock Option
Agreement stating the time at which it may first be exercised or the time during which it will
vest.



 









 





     13. STOCKHOLDER RIGHTS. You shall not be deemed to be the holder of, or to have any of the
rights of a holder with respect to, any shares of Common Stock subject to the option unless and
until you have satisfied all requirements for exercise of the option pursuant to its terms.



     14. 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 any amounts payable to you, and
otherwise agree to make adequate provision for (including by means of a same-day-sale “cashless
exercise” pursuant to a program developed under Regulation T as promulgated by the Federal Reserve
Board to the extent permitted by the Company), any sums required to satisfy the federal, state,
local and foreign tax withholding obligations of the Company or an affiliate of the Company, if
any, which arise in connection with your option.




          (b) Upon your request and subject to approval by the Company, in its sole discretion, and
compliance with any applicable conditions or restrictions of law, 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, not in excess of the minimum amount of tax required to be withheld by law. 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. Notwithstanding the foregoing, the Company shall not be authorized to
withhold shares of Common Stock in excess of the minimum statutory withholding requirements for
federal and state tax purposes, including payroll taxes.




          (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.




     15. NOTICES. Any notices provided for in your option 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 days after deposit in the United States mail, postage prepaid, addressed to you at the
last address you provided to the Company.



     16. CHOICE OF LAW. This option shall be governed by, and construed in accordance with the laws
of the State of California, as such laws are applied to contracts entered into and performed in
such State between California residents.



 









 





     17. GOVERNING AUTHORITY. This option is subject to all interpretations, amendments, rules and
regulations that may from time to time be promulgated and adopted by the Company. This authority
shall be exercised by the Board, or by a committee of one or more members of the Board in the event
that the Board delegates its authority to a committee. The Board, in the exercise of this
authority, may correct any defect, omission or inconsistency in this option in a manner and to the
extent the Board shall deem necessary or desirable. References to the Board also include any
committee appointed by the Board to administer and interpret this option. Any interpretations,
amendments, rules and regulations promulgated by the Board shall be final and binding upon the
Company and its successors in interest as well as you and your heirs, assigns, and other successors
in interest.



     18. AMENDMENT OF OPTION. The Board at any time, and from time to time, may amend the terms of
this option; provided, however, that the rights under this option shall not be impaired by any such
amendment unless you consent in writing.



*   *   *




 









 








NOTICE OF EXERCISE




The Immune Response Corporation

5931 Darwin Court

Carlsbad, CA 92008




Date of Exercise:                          



Ladies and Gentlemen:



This constitutes notice under my non-statutory stock option that I elect to purchase the number of
shares for the price set forth below.



Stock option dated:  October 31, 2005



Number of shares as to which option is exercised: _______________



Certificates to be issued in name of: _______________



Total exercise price: $______________



Cash payment delivered herewith: $______________



By this exercise, I agree (i) to provide such additional documents as you may require and (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.




	 	 	 	 	 
	 

	 	Very truly yours,	 	 
	 
	 	 	 	 
	 

	 	 

Joseph F. O’Neill