EX-10.3 4 tm2421901d1_ex10-3.htm EXHIBIT 10.3

 

Exhibit 10.3

 

Inducement Grant

 

CYTOSORBENTS CORPORATION

Nonstatutory Stock Option Notice

 

Grant No.: _____

 

This Notice evidences the award of nonstatutory stock options (each, an “Option” or collectively, the “Options”) that have been granted to you, Peter J. Mariani, subject to the terms of the attached Nonstatutory Stock Option Agreement (the “Agreement”). The Options entitle you to purchase shares of common stock, par value $0.001 per share (“Common Stock”), of CytoSorbents Corporation, a Delaware corporation (the “Company”). The number of shares you may purchase and the exercise price at which you may purchase them are specified below. This Notice constitutes part of and is subject to the terms and provisions of the Agreement.

 

Grant Date: August 14, 2024

 

Number of Options: 80,000 Options, each permitting the purchase of one Share

 

Exercise Price: $0.90 per share

 

Expiration Date: The Options expire at 5:00 p.m. Eastern Time on the last business day coincident with or prior to the 10th anniversary of the Grant Date (the “Expiration Date”), unless fully exercised or terminated earlier.

 

Exercisability Schedule: Subject to the terms and conditions described in the Agreement, the Options become exercisable in accordance with the schedule below:

 

Vesting Schedule: Subject to the terms of the Agreement and to the applicable terms of the Employment Agreement (as defined below), the Options shall become vested and exercisable according to the vesting schedules set forth in Appendix A of the Agreement so long as your Service is continuous from the Grant Date through the applicable date upon which vesting is scheduled to occur, except as otherwise set forth on Appendix A with respect to vesting and exercise acceleration.

 

The extent to which Options become exercisable as of a particular date is rounded down to the nearest whole share. However, exercisability is rounded up to 100% on the first anniversary of the Grant Date.

 

Inducement Grant: The Options being granted to you herein is intended to constitute an “employment inducement grant” as described in Rule 5635(c)(4), or any successor provision, of the NASDAQ Listing Rules, and is not being granted or made under the CytoSorbents Corporation 2014 Long-Term Incentive Plan, as amended from time to time (the “Plan”).

 

  CytoSorbents Corporation
   
  By: /s/ Dr. Phillip P. Chan
  Name: Dr. Phillip P. Chan
  Title: Chief Executive Officer
  Date: August 14, 2024     

 

I acknowledge that I have carefully read the attached Agreement and the prospectus for the Plan and agree to be bound by all of the provisions set forth in these documents.

 

Enclosures:Nonstatutory Stock Option AgreementOPTIONEE
 /s/ Peter J. Mariani
 Exercise FormPeter J. Mariani
  Date: August 14, 2024  

 

 

 

 

Grant No.: _____

 

Nonstatutory Stock Option Agreement

 

This Agreement, dated as of the Grant Date, is delivered by CytoSorbents Corporation, a Delaware corporation (the “Company”) to you, Peter J. Mariani.

 

Pursuant to the terms of the Employment Agreement, dated August 14, 2024 between the Company and you (as it may be amended from time to time, the “Employment Agreement”), you are to be granted the Options on the terms and subject to the conditions set forth herein. The Board of Directors of the Company has decided to make Options grant as a material inducement for you to enter into employment with the Company and to align your interests with those of the Company and its stockholders. The grant of the Options provided for herein is intended to constitute an “employment inducement grant” as described in Rule 5635(c)(4), or any successor provision, of the NASDAQ Listing Rules, and is not being granted or made under the Plan.

 

1.     Terminology. Capitalized terms used in this Agreement are defined in the correlating Stock Option Notice and/or the Glossary at the end of the Agreement or, in the Plan, as applicable.

 

2.     Inducement Grant.

 

a.     The Options are being granted to you by the Company in accordance with the employment inducement grant exception to the shareholder-approval requirements of the Nasdaq Stock Market set forth in Rule 5635(c)(4), or any successor provision, of the NASDAQ Listing Rules on the terms and subject to the conditions set forth in this Agreement and, subject to Section 2(c) below, otherwise on terms identical to the terms provided in the Plan. In the event of any conflict between this Agreement and the Plan, this Agreement shall control.

 

b.     You acknowledge that the grant of the Options hereunder satisfies in full the Company’s obligation to provide you with nonstatutory stock option grant as described in Section 4.3(d) of the Employment Agreement. You further acknowledge that the grant of the Options hereunder is intended to be in consideration for, in part, the covenants set forth in Section 10 of the Employment Agreement.

 

c.     It is understood that the Options are not being granted pursuant to the Plan; provided, however, that this Agreement shall be construed and administered in a manner consistent with the provisions of the Plan as if granted pursuant thereto, the terms of which are incorporated herein by reference (including, without limitation, any interpretations, amendments, rules and regulations promulgated by the Administrator from time to time pursuant to the Plan, which shall be deemed to apply to the Options granted hereunder without any further action of the Administrator, unless expressly provided otherwise by the Administrator). The Administrator shall have final authority to interpret and construe the terms of this Agreement and the Plan’s terms as they are incorporated herein by reference and deemed to apply to the Options granted hereunder, and to make any and all determinations under them, and its decision shall be binding and conclusive upon you and your beneficiaries in respect of any questions arising under the Plan or this Agreement. You acknowledge that you have received a copy of the Plan and the official prospectus for the Plan. You also acknowledge that you had an opportunity to review the Plan and agree to be bound by the terms and provisions of the Plan, as incorporated into this Agreement. Paper copies of the Plan and the official Plan prospectus are available, and paper copies of the prospectus for this Agreement will be available, by contacting the Chief Legal Officer of the Company. For the avoidance of doubt, neither the Options granted hereunder nor any shares of Common Stock issued upon exercise of the Options shall reduce the number of shares of Common Stock available for issuance pursuant to Awards granted under the Plan.

 

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3.Exercise of Options.

 

a.     Exercisability. The Options will become exercisable in accordance with the Exercisability Schedule set forth in the Stock Option Notice, so long as you are in the Service of the Company from the Grant Date through the applicable exercisability dates. None of the Options will become exercisable after your Service with the Company ceases, unless the Stock Option Notice provides otherwise with respect to exercisability that arises as a result of your cessation of Service.

 

b.     Right to Exercise. You may exercise the Options, to the extent exercisable, at any time on or before 5:00 p.m. Eastern Time on the Expiration Date or the earlier termination of the Options, unless otherwise provided under applicable law. Notwithstanding the foregoing, if at any time the Administrator determines that the delivery of the Shares this Agreement is or may be unlawful under the laws of any applicable jurisdiction, or Federal, state or foreign securities laws, the right to exercise the Options or receive Shares pursuant to the Options shall be suspended until the Administrator determines that such delivery is lawful. If at any time the Administrator determines that the delivery of the Shares under this Agreement is or may violate the rules of the national securities exchange on which the shares are then listed for trade, the right to exercise the Options or receive Shares pursuant to the Options shall be suspended until the Administrator determines that such exercise or delivery would not violate such rules. Section 4 below describes certain limitations on exercise of the Options that apply in the event of your death, Disability, or termination of Service. The Options may be exercised only in multiples of whole Shares and may not be exercised at any one time as to fewer than one hundred Shares (or such lesser number of Shares as to which the Options are then exercisable). No fractional Shares will be issued under the Options.

 

c.     Exercise Procedure. In order to exercise the Options, you must provide the following items to the Secretary of the Company or his or her delegate before the expiration or termination of the Options:

 

i.     notice, in such manner and form as the Administrator may require from time to time, specifying the number of Shares to be purchased under the Options;

 

ii.    full payment of the Exercise Price for the Shares or properly executed, irrevocable instructions, in such manner and form as the Administrator may require from time to time, to effectuate a broker-assisted cashless exercise, each in accordance with Section 3(d) of this Agreement; and

 

iii.   full payment of applicable withholding taxes pursuant to Section 8 of this Agreement.

 

An exercise will not be effective until the Secretary of the Company or his or her delegate receives all of the foregoing items, and such exercise otherwise is permitted under and complies with all applicable federal, state and foreign securities laws. Notwithstanding the foregoing, if the Administrator permits payment by means of delivering properly executed, irrevocable instructions, in such manner and form as the Administrator may require from time to time, to effectuate a broker-assisted cashless exercise and such instructions provide for sale of Shares under a limit order rather than at the market, the exercise will not be effective until the earlier of the date the Company receives delivery of cash or cash equivalents in full payment of the Exercise Price or the date the Company receives confirmation from the broker that the sale instruction has been fulfilled, and the exercise will not be effective unless the earlier of such dates occurs on or before termination of the Options.

 

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d.     Method of Payment. You may pay the Exercise Price by:

 

i.     delivery of cash, certified or cashier’s check, money order or other cash equivalent acceptable to the Administrator in its discretion;

 

ii.    a broker-assisted cashless exercise in accordance with Regulation T of the Board of Governors of the Federal Reserve System through a brokerage firm designated or approved by the Administrator;

 

iii.   subject to such limits as the Administrator may impose from time to time, tender (via actual delivery or attestation) to the Company of other shares of Common Stock of the Company which have a Fair Market Value on the date of tender equal to the Exercise Price; or

 

iv.   any other method approved by the Administrator; or

 

v.    any combination of the foregoing.

 

e.     Issuance of Shares upon Exercise. The Company shall issue to you the Shares underlying the Options you exercise as soon as practicable after the exercise date, subject to the Company’s receipt of the aggregate exercise price and the requisite withholding taxes, if any. Upon issuance of such Shares, the Company may deliver, subject to the provisions of Section 8 below, such Shares on your behalf electronically to the Company’s designated stock plan administrator or such other broker-dealer as the Company may choose at its sole discretion, within reason, or may retain such Shares in uncertificated book-entry form. Any share certificates delivered will, unless the Shares are registered or an exemption from registration is available under applicable federal and state law, bear a legend restricting transferability of such Shares.

 

4.Termination of Service.

 

a.     Termination of Unexercisable Options. If your Service with the Company ceases for any reason, the Options that are then unexercisable, after giving effect to any vesting and exercise acceleration provisions set forth on Appendix A, will terminate immediately upon such cessation.

 

b.     Exercise Period Following Termination of Service. If your Service with the Company ceases for any reason other than discharge for Cause, the Options that are then exercisable, after giving effect to any vesting and exercise acceleration provisions set forth on Appendix A, will terminate upon the earliest of:

 

i.     the expiration of 90 days following such cessation, if your Service ceases on account of (1) your termination by the Company other than a discharge for Cause, or (2) your voluntary termination other than for Disability or death;

 

ii.    the expiration of 12 months following such cessation, if your Service ceases on account of your Disability or death;

 

iii.   the expiration of 12 months following your death, if your death occurs during the periods described in clauses (i) or (ii) of this Section 4(b), as applicable; or

 

iv.   the Expiration Date.

 

In the event of your death, the exercisable Options may be exercised by your executor, personal representative, or the person(s) to whom the Options are transferred by will or the laws of descent and distribution.

 

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c.     Misconduct. The Options will terminate in their entirety, regardless of whether the Options are then exercisable, immediately upon your discharge from Service for Cause, or upon your commission of any of the following acts during the exercise period following your termination of Service: (i) fraud on or misappropriation of any funds or property of the Company, or (ii) your breach of any provision of any employment, non-disclosure, non-competition, non-solicitation, assignment of inventions, or other similar agreement executed by you for the benefit of the Company, as determined by the Administrator, which determination will be conclusive.

 

d.     Change in Status. In the event that your Service is with a business, trade or entity that, after the Grant Date, ceases for any reason to be part or an Affiliate of the Company, your Service will be deemed to have terminated for purposes of this Section 4 upon such cessation if your Service does not continue uninterrupted immediately thereafter with the Company or an Affiliate of the Company.

 

5.     Nontransferability of Options. These Options and, before exercise, the underlying Shares are nontransferable otherwise than by will or the laws of descent and distribution and, during your lifetime, the Options may be exercised only by you or, during the period you are under a legal disability, by your guardian or legal representative. Except as provided above, the Options and, before exercise, the underlying Shares may not be assigned, transferred, pledged, hypothecated, subjected to any “put equivalent position,” “call equivalent position” (as each preceding term is defined by Rule 16(a)-1 under the Securities Exchange Act of 1934), or short position, or disposed of in any way (whether by operation of law or otherwise) and shall not be subject to execution, attachment or similar process.

 

6.     Nonqualified Nature of the Options. The Options are not intended to qualify as incentive stock options within the meaning of Code section 422, and this Agreement shall be so construed. You hereby acknowledge that, upon exercise of the Options, you will recognize compensation income in an amount equal to the excess of the then Fair Market Value of the Shares over the Exercise Price and must comply with the provisions of Section 8 of this Agreement with respect to any tax withholding obligations that arise as a result of such exercise.

 

7.Withholding of Taxes.

 

a.     At the time the Options are exercised, in whole or in part, or at any time thereafter as requested by the Company, you hereby authorize withholding from payroll or any other payment of any kind due to you and otherwise agree to make adequate provision for foreign, federal, state and local taxes required by law to be withheld, if any, which arise in connection with the Options. The Company may require you to make a cash payment to cover any withholding tax obligation as a condition of exercise of the Options or issuance of share certificates representing Shares.

 

b.     The Administrator may, in its sole discretion, permit you to satisfy, in whole or in part, any withholding tax obligation which may arise in connection with the Options either by electing to have the Company withhold from the Shares to be issued upon exercise that number of Shares, or by electing to deliver to the Company already-owned shares, in either case having a Fair Market Value not in excess of the amount necessary to satisfy the statutory minimum withholding amount due.

 

8.     Adjustments. The Administrator may make various adjustments to your Options, including adjustments to the number and type of securities subject to the Options and the Exercise Price, in accordance with the terms of the Plan.

 

9.     Non-Guarantee of Employment or Service Relationship. Nothing in the Plan or this Agreement will alter your at-will or other employment status or other service relationship with the Company, nor be construed as a contract of employment or service relationship between you and the Company, or as a contractual right for you to continue in the employ of, or in a service relationship with, the Company for any period of time, or as a limitation of the right of the Company to discharge you at any time with or without Cause or notice and whether or not such discharge results in the failure of any of the Options to become exercisable or any other adverse effect on your interests as set forth in the Plan.

 

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10.   No Rights as a Stockholder. You shall not have any of the rights of a stockholder with respect to the Shares until such Shares have been issued to you upon the due exercise of the Options. No adjustment will be made for dividends or distributions or other rights for which the record date is prior to the date such Shares are issued.

 

11.   The Company’s Rights. The existence of the Options shall not affect in any way the right or power of the Company or its stockholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in the Company's capital structure or its business, or any merger or consolidation of the Company, or any issue of bonds, debentures, preferred or other stocks with preference ahead of or convertible into, or otherwise affecting the Common Stock or the rights thereof, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of the Company's assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise.

 

12.   Entire Agreement. This Agreement, together with the correlating Stock Option Notice, contain the entire agreement between you and the Company with respect to the Options. Any oral or written agreements, representations, warranties, written inducements, or other communications made prior to the execution of this Agreement with respect to the Options shall be void and ineffective for all purposes.

 

13.   Amendment. This Agreement may be amended from time to time by the Administrator in its discretion; provided, however, that this Agreement may not be modified in a manner that would have a materially adverse effect on the Options or Shares as determined in the discretion of the Administrator, except as provided in the Plan or in a written document signed by you and the Company.

 

14.   Section 409A. This Agreement and the Options granted hereunder are intended to comply with, or otherwise be exempt from, Section 409A of the Code. This Agreement and the Options shall be administered, interpreted and construed in a manner consistent with this intent. Nothing in the Plan or this Agreement shall be construed as including any feature for the deferral of compensation other than the deferral of recognition of income until the exercise of the Options. Should any provision of the Plan or this Agreement be found not to comply with, or otherwise be exempt from, the provisions of Section 409A of the Code, it may be modified and given effect, in the sole discretion of the Administrator and without requiring your consent, in such manner as the Administrator determines to be necessary or appropriate to comply with, or to effectuate an exemption from, Section 409A of the Code. The foregoing, however, shall not be construed as a guarantee or warranty by the Company of any particular tax effect to you.

 

15.   Electronic Delivery of Documents. By your signing the Notice, you (i) consent to the electronic delivery of this Agreement, all information with respect to the Plan and the Options, and any reports of the Company provided generally to the Company’s stockholders; (ii) acknowledge that you may receive from the Company a paper copy of any documents delivered electronically at no cost to you by contacting the Company by telephone or in writing; (iii) further acknowledge that you may revoke your consent to the electronic delivery of documents at any time by notifying the Company of such revoked consent by telephone, postal service or electronic mail; and (iv) further acknowledge that you understand that you are not required to consent to electronic delivery of documents.

 

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16.   No Future Entitlement. By execution of the Notice, you acknowledge and agree that: (i) the grant of these Options is a one-time benefit which does not create any contractual or other right to receive future grants of stock options, or compensation in lieu of stock options, even if stock options have been granted repeatedly in the past; (ii) all determinations with respect to any such future grants, including, but not limited to, the times when stock options shall be granted or shall become exercisable, the maximum number of shares subject to each stock option, and the purchase price, will be at the sole discretion of the Administrator; (iii) the value of these Options is an extraordinary item of compensation which is outside the scope of your employment contract, if any; (iv) the value of these Options is not part of normal or expected compensation or salary for any purpose, including, but not limited to, calculating any termination, severance, resignation, redundancy, end of service payments or similar payments, or bonuses, long-service awards, pension or retirement benefits; (v) the vesting of these Options ceases upon termination of employment with the Company or transfer of employment from the Company, or other cessation of eligibility for any reason, except as may otherwise be explicitly provided in this Agreement; (vi) if the underlying Common Stock does not increase in value, these Options will have no value, nor does the Company guarantee any future value; and (vii) no claim or entitlement to compensation or damages arises if these Options do not increase in value and you irrevocably release the Company from any such claim that does arise.

 

17.   Personal Data. For the purpose of implementing, administering and managing these Options, you, by execution of the Notice, consent to the collection, receipt, use, retention and transfer, in electronic or other form, of your personal data by and among the Company and its third party vendors or any potential party to any Change in Control transaction or capital raising transaction involving the Company. You understand that personal data (including but not limited to, name, home address, telephone number, employee number, employment status, social security number, tax identification number, date of birth, nationality, job and payroll location, data for tax withholding purposes and shares awarded, cancelled, exercised, vested and unvested) may be transferred to third parties assisting in the implementation, administration and management of these Options and you expressly authorize such transfer as well as the retention, use, and the subsequent transfer of the data by the recipient(s). You understand that these recipients may be located in your country or elsewhere, and that the recipient’s country may have different data privacy laws and protections than your country. You understand that data will be held only as long as is necessary to implement, administer and manage these Options. You understand that you may, at any time, request a list with the names and addresses of any potential recipients of the personal data, view data, request additional information about the storage and processing of data, require any necessary amendments to data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing the Company’s Secretary. You understand, however, that refusing or withdrawing your consent may affect your ability to accept a stock option.

 

18.   Governing Law. The validity, construction and effect of this Agreement, and of any determinations or decisions made by the Administrator relating to this Agreement, and the rights of any and all persons having or claiming to have any interest under this Agreement, shall be determined exclusively in accordance with the laws of the State of New Jersey, without regard to its provisions concerning the applicability of laws of other jurisdictions. As a condition of this Agreement, you agree that you will not bring any action arising under, as a result of, pursuant to or relating to, this Agreement in any court other than a federal or state court in the districts which include New Jersey, and you hereby agree and submit to the personal jurisdiction of any federal court located in the district which includes New Jersey or any state court in the district which includes New Jersey. You further agree that you will not deny or attempt to defeat such personal jurisdiction or object to venue by motion or other request for leave from any such court.

 

19.   Resolution of Disputes. Any dispute or disagreement which shall arise under, or as a result of, or pursuant to or relating to, this Agreement shall be determined by the Administrator in good faith in its absolute and uncontrolled discretion, and any such determination or any other determination by the Administrator under or pursuant to this Agreement and any interpretation by the Administrator of the terms of this Agreement, will be final, binding and conclusive on all persons affected thereby. You agree that before you may bring any legal action arising under, as a result of, pursuant to or relating to, this Agreement you will first exhaust your administrative remedies before the Administrator. You further agree that in the event that the Administrator does not resolve any dispute or disagreement arising under, as a result of, pursuant to or relating to, this Agreement to your satisfaction, no legal action may be commenced or maintained relating to this Agreement more than twenty-four (24) months after the Administrator’s decision.

 

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20.   Headings. The headings in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.

 

21.   Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.

 

{Glossary begins on next page}

 

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GLOSSARY

 

(a)           “Administrator” means the Board or the committee(s) or officer(s) appointed by the Board that have authority to administer the Options under this Agreement.

 

(b)           “Affiliate” means any entity, whether now or hereafter existing, which controls, is controlled by, or is under common control with, CytoSorbents Corporation. For this purpose, “control” means ownership of 50% or more of the total combined voting power or value of all classes of stock or interests of the entity.

 

(c)           “Cause” has the meaning ascribed to such term in the Employment Agreement.

 

(d)           “Change of Control” has the meaning ascribed to such term in the Employment Agreement.

 

(e)           “Code” means the Internal Revenue Code of 1986, as amended.

 

(f)            “Company” includes CytoSorbents Corporation and its Affiliates, except where the context otherwise requires.

 

(g)           Disability” has the meaning ascribed to such term in the Employment Agreement.

 

(h)           “Fair Market Value” of a share of Common Stock generally means either the closing price or the average of the high and low sale price per share of Common Stock on the relevant date, as determined in the Administrator’s discretion, as reported by the principal market or exchange upon which the Common Stock is listed or admitted for trade. Refer to the Plan for a detailed definition of Fair Market Value, including how Fair Market Value is determined in the event that no sale of Common Stock is reported on the relevant date.

 

(i)            “Good Reason” has the meaning ascribed to such term in the Employment Agreement.

 

(j)            “Service” means your employment or other service relationship with the Company and its Affiliates. Your Service will be considered to have ceased with the Company and its Affiliates if, immediately after a sale, merger or other corporate transaction, the trade, business or entity with which you are employed or otherwise have a service relationship is not the Company or its successor or an Affiliate of the Company or its successor.

 

(k)           “Shares” mean the shares of Common Stock underlying the Options.

 

(l)            “Stock Option Notice” means the written notice evidencing the award of the Options that correlates with and makes up a part of this Agreement.

 

(m)          “Termination Date” has the meaning ascribed to such term in the Employment Agreement.

 

(n)           “You”; “Your”. “You” or “your” means the recipient of the award of Options as reflected on the Stock Option Notice. Whenever the Agreement refers to “you” under circumstances where the provision should logically be construed, as determined by the Administrator, to apply to your estate, personal representative, or beneficiary to whom the Options may be transferred by will or by the laws of descent and distribution, the word “you” shall be deemed to include such person.

 

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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officer.

 

  CytoSorbents Corporation
   
  By: /s/ Dr. Phillip P. Chan
  Name: Dr. Phillip P. Chan
  Title: Chief Executive Officer
  Date: August 14, 2024                           

 

The undersigned hereby acknowledges that he/she has carefully read this Agreement and agrees to be bound by all of the provisions set forth herein. The undersigned also consents to electronic delivery of all notices or other information with respect to the Options or the Company.

 

 GRANTEE
    
   /s/ Peter J. Mariani
   Peter J. Mariani
   Date: August 14, 2024         

 

 

 

 

Appendix A

 

Vesting Schedule

 

Time-Based Option Grant

 

·80,000 Shares shall become vested and exercisable according to the following vesting schedule; provided, that your Service is continuous from the Grant Date through such applicable vesting date:

 

Number of Shares Subject to Vesting Vesting Date
41,000 6th month anniversary of the Grant Date
13,000 1st anniversary of the Grant Date
13,000 2nd anniversary of the Grant Date
13,000 3rd anniversary of the Grant Date

 

·Except as otherwise set forth below and subject to the applicable terms of the Employment Agreement that may provide for accelerated vesting of the Options under certain circumstances, if your Service with the Company ceases for any reason, all Shares that are not then vested and exercisable will be forfeited to the Company immediately and automatically upon such cessation without payment of any consideration therefor and you will have no further right, title or interest in or to such Options or the underlying shares of Common Stock.