Exhibit 99.4
CV THERAPEUTICS,
INC.
2004 EMPLOYMENT COMMENCEMENT
INCENTIVE PLAN
A DOPTED BY THE B OARD OF D IRECTORS D ECEMBER 14, 2004
A MENDED AND R ESTATED BY THE B OARD OF D IRECTORS M AY 31, 2007
1. P URPOSES .
(a) Eligible Stock Award
Recipients. Only Eligible
Participants may receive Stock Awards under this Plan.
(b) General Purpose.
The purpose of the Plan is to
provide a means by which Eligible Participants may be given an
opportunity to benefit from increases in value of the Common Stock
through the granting of Stock Awards, to secure and retain the
services of new members of this group and to provide incentives for
such persons to exert maximum efforts for the success of the
Company and its Affiliates.
2. D EFINITIONS .
(a)
“Affiliate” means any parent corporation or subsidiary
corporation of the Company, whether now or hereafter existing, as
those terms are defined in Sections 424(e) and (f), respectively,
of the Code.
(b)
“Board” means the Board of Directors of the
Company.
(c)
“Code” means the Internal Revenue Code of 1986, as
amended.
(d)
“Committee” means a committee of one or more members of the
Board appointed by the Board in accordance with
subsection 3(c).
(e) “Common
Stock” means
the common stock of the Company.
(f)
“Company” means CV Therapeutics, Inc., a Delaware
corporation.
(g)
“Consultant” means any person, including an advisor,
(i) engaged by the Company or an Affiliate to render
consulting or advisory services and who is compensated for such
services or (ii) who is a member of the Board of Directors of
an Affiliate. However, the term “Consultant” shall not
include Directors.
(h) “Continuous
Service” means
that the Participant’s service with the Company or an
Affiliate, whether as an Employee or Consultant, is not interrupted
or terminated. The Participant’s Continuous Service shall not
be deemed to have terminated merely because of a change in the
capacity in which the Participant renders service to the Company or
an Affiliate as an Employee or Consultant or a change in the entity
for which the Participant renders such service, provided that there
is no interruption or termination of the Participant’s
service to the Company or an Affiliate. For example, a change in
status without interruption from an Employee of the Company to a
Consultant of an Affiliate will not constitute an interruption of
Continuous Service. The Board or the chief executive officer of the
Company, in that party’s sole discretion, may determine
whether Continuous Service shall be considered interrupted in the
case of any leave of absence approved by that party, including sick
leave, military leave or any other personal leave.
(i)
“Director” means a member of the Board of Directors of the
Company.
(j)
“Disability” means the permanent and total disability of a
person within the meaning of Section 22(e)(3) of the
Code.
(k) “ Eligible
Participant ” means any Employee who has not previously been
an Employee or Director of the Company or an Affiliate, or
following a bona fide period of non-employment by the Company or an
Affiliate, if he or she is granted a Stock Award in connection with
his or her commencement of employment with the Company or an
Affiliate and such grant is an inducement material to his or her
entering into employment with the Company or an Affiliate. The
Board may in its discretion adopt procedures from time to time to
ensure that an Employee is eligible to participate in the Plan
prior to the granting of any Stock Awards to such Employee under
the Plan (including, without limitation, a requirement, if any,
that each such Employee certify to the Company prior to the receipt
of a Stock Award under the Plan that he or she has not been
previously employed by the Company or an Affiliates, or if
previously employed, has had a bona fide period of non-employment,
and that the grant of Stock Awards under the Plan is an inducement
material to his or her agreement to enter into employment with the
Company or an Affiliates).
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(l)
“Employee” means any person employed by the Company or an
Affiliate. Mere service as a Director or payment of a
director’s fee by the Company or an Affiliate shall not be
sufficient to constitute “employment” by the Company or
an Affiliate.
(m) “Exchange
Act” means the
Securities Exchange Act of 1934, as amended.
(n) “ Fair Market
Value” means,
as of any date, the value of the Common Stock determined as
follows:
(i) If the Common Stock is listed on any established
stock exchange or traded on the Nasdaq National Market or the
Nasdaq SmallCap Market, the Fair Market Value of a share of Common
Stock shall be the closing sales price for such stock (or the
closing bid, if no sales were reported) as quoted on such exchange
or market (or the exchange or market with the greatest volume of
trading in the Common Stock) on the last market trading day prior
to the day of determination, as reported in The Wall Street
Journal or such other source as the Board deems
reliable.
(ii) In the absence of such markets for the Common
Stock, the Fair Market Value shall be determined in good faith by
the Board.
(o) “Incentive Stock
Option” means
an Option intended to qualify as an incentive stock option within
the meaning of Section 422 of the Code and the regulations
promulgated thereunder. Incentive Stock Options may not be granted
under the Plan.
(p) “Independent
Director” means a Director who is not an Employee of the
Company and who qualifies as “independent” within the
meaning of NASD Rule 4200(a)(14), if the Company’s securities
are traded on the Nasdaq National Market, or the requirements of
any other established stock exchange on which the Company’s
securities are traded, as such rules or requirements may be amended
from time to time.
(q)
“NASD” means the National Association of Securities
Dealers, Inc.
(r) “Nonstatutory Stock
Option” means
an Option not intended to qualify as an Incentive Stock
Option.
(s)
“Option” means a Nonstatutory Stock Option granted
pursuant to the Plan.
(t) “Option
Agreement” means a written or electronic agreement between
the Company and an Optionholder evidencing certain terms and
conditions of an individual Option grant. Each Option Agreement
shall be subject to the terms and conditions of the
Plan.
(u)
“Optionholder” means a person to whom an Option is granted
pursuant to the Plan or, if applicable, such other person who holds
an outstanding Option.
(v) “ Participant ” means
a person to whom a Stock Award is granted pursuant to the Plan or,
if applicable, such other person who holds an outstanding Stock
Award.
(w)
“Plan” means this CV Therapeutics, Inc. 2004 Employment
Commencement Incentive Plan.
(x) “ Restricted Stock ”
means Common Stock awarded to a Participant pursuant to Section VII
that is subject to certain restrictions and to risk of
forfeiture.
(y) “ Restricted Stock Unit
” means a right to receive a specified number of shares of
Common Stock during specified time periods pursuant to Section
VII.
(z) “Rule
16b-3” means
Rule 16b-3 promulgated under the Exchange Act or any successor to
Rule 16b-3, as in effect from time to time.
(aa) “Securities
Act” means the
Securities Act of 1933, as amended.
(bb) “ Stock Award ” means
any right granted under the Plan, including an Option, Restricted
Stock, and a Restricted Stock Unit.
(cc) “ Stock Award Agreement
” means a written agreement between the Company and a
Participant evidencing the terms and conditions of an individual
Stock Award grant. Each Stock Award Agreement shall be subject to
the terms and conditions of the Plan.
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3. A DMINISTRATION .
(a) Administration by
Board. The Board shall
administer the Plan unless and until the Board delegates
administration to a Committee, as provided in subsection 3(c). Any
actions taken by the Board in connection with the administration of
the Plan shall not be deemed approved by the Board unless such
actions are approved by a majority of the Independent
Directors.
(b) Powers of Board.
The Board shall have the power,
subject to, and within the limitations of, the express provisions
of the Plan:
(i) To determine from time to time which of the
persons eligible under the Plan shall be granted Stock Awards; when
and how each Stock Award shall be granted; the provisions of each
Stock Award granted (which need not be identical), including the
time or times when a person shall be permitted to receive Common
Stock pursuant to a Stock Award; and the number of shares of Common
Stock with respect to which a Stock Award shall be granted to each
such person.
(ii) To adopt procedures from time to time in the
Board’s discretion to ensure that an Employee is eligible to
participate in the Plan prior to the granting of any Stock Awards
to such Employee under the Plan (including, without limitation, a
requirement, if any, that each such Employee certify to the Company
prior to the receipt of a Stock Award under the Plan that he or she
has not been previously employed by the Company or an Affiliates,
or if previously employed, has had a bona fide period of
non-employment, and that the grant of Stock Awards under the Plan
is an inducement material to his or her agreement to enter into
employment with the Company or an Affiliates).
(iii) To construe and interpret the Plan and Stock
Awards granted under it, and to establish, amend and revoke rules
and regulations for its administration. The Board, in the exercise
of this power, may correct any defect, omission or inconsistency in
the Plan or in any Stock Award Agreement, in a manner and to the
extent it shall deem necessary or expedient to make the Plan fully
effective.
(iv) To amend the Plan or a Stock Award as provided
in Section 11.
(v) To terminate or suspend the Plan as provided in
Section 12.
(vi) Generally, to exercise such powers and to
perform such acts as the Board deems necessary or expedient to
promote the best interests of the Company which are not in conflict
with the provisions of the Plan.
(c) Delegation to
Committee. The Board may
delegate administration of the Plan to the Compensation Committee
of the Board, which shall be comprised of a majority of the
Independent Directors, or is a committee comprised solely of the
Company’s Independent Directors. The term “
Committee ” shall apply to any persons to whom such
authority has been delegated. If administration is delegated to a
Committee, the Committee shall have, in connection with the
administration of the Plan, the powers theretofore possessed by the
Board (and references in this Plan to the Board shall thereafter be
to the Committee), subject, however, to such resolutions, not
inconsistent with the provisions of the Plan, as may be adopted
from time to time by the Board. The Board may abolish the Committee
at any time and revest in the Board the administration of the
Plan.
(d) Effect of Board’s
Decision. All
determinations, interpretations and constructions made by the Board
in good faith shall not be subject to review by any person and
shall be final, binding and conclusive on all persons.
4. S HARES S UBJECT TO THE P LAN .
(a) Share Reserve.
The number of shares of Common Stock
that may be issued pursuant to Stock Awards shall initially be zero
(0). Prior to or concurrently with the grant of any Stock Awards
under the Plan, the Board shall reserve for issuance hereunder such
number of shares of Common Stock as may be necessary in order to
accommodate such Stock Awards, which reservation (which may be net
of any shares that have reverted to and become available for
issuance under the Plan due to the expiration or termination of
Stock Grants) shall be noted on the schedule attached hereto.
Subject to subsection 4(b), the aggregate number of shares of
Common Stock that may be issued pursuant to Stock Awards at any
given time shall be equal to the total of such shares so reserved
by the Board. Any shares of Common Stock so reserved shall be
subject to the provisions of Section 11 relating to
adjustments upon changes in Common Stock.
(b) Reversion of Shares to the
Share Reserve . If any
Stock Award shall for any reason expire or otherwise terminate, in
whole or in part, without having been exercised in full, the shares
of Common Stock not acquired under such Stock Award shall revert to
and again become available for issuance under the Plan.
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(c) Source of Shares.
The shares of Common Stock subject
to the Plan may be unissued shares or reacquired shares, bought on
the market or otherwise.
5. E LIGIBILITY . Stock Awards may be granted only to Eligible
Participants. All Options granted under the Plan shall be
Nonstatutory Stock Options.
6. O PTION P ROVISIONS .
The Board may grant Options, the
terms of which Stock Awards shall be set forth in an appropriate
Option Agreement. Each Option shall be in such form and shall
contain such terms and conditions as the Board shall deem
appropriate. The provisions of separate Options need not be
identical, but each Option shall include (through incorporation of
provisions hereof by reference in the Option or otherwise) the
substance of each of the following provisions:
(a) Option Exercise
Price. The exercise price
of each Option shall be not less than par value of the Common Stock
subject to the Option on the date the Option is granted.
(b) Consideration.
The purchase price of Common Stock
acquired pursuant to an Option shall be paid, to the extent
permitted by applicable statutes and regulations, either
(i) in cash at the time the Option is exercised or
(ii) at the discretion of the Board (1) by delivery to
the Company of other Common Stock, (2) according to a deferred
payment or other similar arrangement with the Optionholder or
(3) in any other form of legal consideration that may be
acceptable to the Board. Unless otherwise specifically provided in
the Option, the purchase price of Common Stock acquired pursuant to
an Option that is paid by delivery to the Company of other Common
Stock acquired, directly or indirectly from the Company, shall be
paid only by shares of the Common Stock of the Company that have
been held for more than six (6) months (or such longer or
shorter period of time required to avoid a charge to earnings for
financial accounting purposes). At any time that the Company is
incorporated in Delaware, payment of the Common Stock’s
“par value,” as defined in the Delaware General
Corporation Law, shall not be made by deferred payment.
(c) Deferred Payment.
In the case of any deferred payment
arrangement, interest shall be compounded at least annually and
shall be charged at the minimum rate of interest necessary to avoid
the treatment as interest, under any applicable provisions of the
Code, of any amounts other than amounts stated to be interest under
the deferred payment arrangement.
(d) Transferability of
Options. An Option shall
be transferable to the extent provided in the Option Agreement. If
the Option does not provide for transferability, then the Option
shall not be transferable except by will or by the laws of descent
and distribution and shall be exercisable during the lifetime of
the Optionholder only by the Optionholder. Notwithstanding the
foregoing, the Optionholder may, by delivering written notice to
the Company, in a form satisfactory to the Company, designate a
third party who, in the event of the death of the Optionholder,
shall thereafter be entitled to exercise the Option.
(e) Vesting Generally.
The total number of shares of Common
Stock subject to an Option may, but need not, vest and therefore
become exercisable in periodic installments that may, but need not,
be equal. The Option may be subject to such other terms and
conditions on the time or times when it may be exercised (which may
be based on performance or other criteria) as the Board may deem
appropriate. The vesting provisions of individual Options may vary.
The provisions of this subsection 6(f) are subject to any Option
provisions governing the minimum number of shares of Common Stock
as to which an Option may be exercised.
(f) Termination of Continuous
Service. In the event an
Optionholder&
