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EXHIBIT 10.3
IMARX THERAPEUTICS, INC.
2000 STOCK PLAN
1.
Purposes of the Plan. The purposes of this Stock Plan are to
attract and
retain the best available personnel for positions of substantial
responsibility,
to provide additional incentive to Employees, Directors and
Consultants and to
promote the success of the Company's business. Options granted
under the Plan
may be Incentive Stock Options or Nonstatutory Stock Options, as
determined by
the Administrator at the time of grant. Stock Purchase Rights may
also be
granted under the Plan.
2.
Definitions. As used herein, the following definitions shall
apply:
(a) "Administrator" means the Board or any of its Committees as
shall
be administering the Plan in accordance with Section 4 hereof.
(b) "Applicable Laws" means the requirements relating to the
administration of stock option plans under U.S. state corporate
laws, U.S.
federal and state securities laws, the Code, any stock exchange or
quotation
system on which the Common Stock is listed or quoted and the
applicable laws of
any other country or jurisdiction where Options or Stock Purchase
Rights are
granted under the Plan.
(c) "Board" means the Board of Directors of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Committee" means a committee of Directors appointed by the
Board
in accordance with Section 4 hereof.
(f) "Common Stock" means the Common Stock of the Company.
(g) "Company" means ImaRx Therapeutics, Inc., an Arizona
corporation.
(h) "Consultant" means any person who is engaged by the Company or
any
Parent or Subsidiary to render consulting or advisory services to
such entity.
(i) "Director" means a member of the Board of Directors of the
Company.
(j) "Disability" means total and permanent disability as defined
in
Section 22(e)(3) of the Code.
(k) "Employee" means any person, including Officers and
Directors,
employed by the Company or any Parent or Subsidiary of the Company.
A Service
Provider shall not cease to be an Employee in the case of (i) any
leave of
absence approved by the Company or (ii) transfers between locations
of the
Company or between the Company, its Parent, any Subsidiary, or
any
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successor. For purposes of Incentive Stock Options, no such leave
may exceed
ninety days, unless reemployment upon expiration of such leave is
guaranteed by
statute or contract. If reemployment upon expiration of a leave of
absence
approved by the Company is not so guaranteed, on the 181st day of
such leave any
Incentive Stock Option held by the Optionee shall cease to be
treated as an
Incentive Stock Option and shall be treated for tax purposes as a
Nonstatutory
Stock Option. Neither service as a Director nor payment of a
director's fee by
the Company shall be sufficient to constitute "employment" by the
Company.
(l) "Exchange Act" means the Securities Exchange Act of 1934,
as
amended.
(m) "Fair Market Value" means, as of any date, the value of
Common
Stock determined as follows:
(i) If the Common Stock is listed on any established stock
exchange or a national market system, including without limitation
the Nasdaq
National Market or The Nasdaq Small Cap Market of The Nasdaq Stock
Market, its
Fair Market Value shall be the closing sales price for such stock
(or the
closing bid, if no sales were reported) as quoted on such exchange
or system for
the last market trading day prior to the time of determination, as
reported in
The Wall Street Journal or such other source as the Administrator
deems
reliable;
(ii) If the Common Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported, its Fair
Market Value
shall be the mean between the high bid and low asked prices for the
Common Stock
on the last market trading day prior to the day of determination;
or
(iii) In the absence of an established market for the Common
Stock, the Fair Market Value thereof shall be determined in good
faith by the
Administrator.
(n) "Incentive Stock Option" means an Option intended to qualify as
an
incentive stock option within the meaning of Section 422 of the
Code.
(o) "Nonstatutory Stock Option" means an Option not intended to
qualify as an Incentive Stock Option.
(p) "Officer" means a person who is an officer of the Company
within
the meaning of Section 16 of the Exchange Act and the rules and
regulations
promulgated thereunder.
(q) "Option" means a stock option granted pursuant to the Plan.
(r) "Option Agreement" means a written or electronic agreement
between
the Company and an Optionee evidencing the terms and conditions of
an individual
Option grant. The Option Agreement is subject to the terms and
conditions of the
Plan.
(s) "Option Exchange Program" means a program whereby
outstanding
Options are exchanged for Options with a lower exercise price.
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(t) "Optioned Stock" means the Common Stock subject to an Option or
a
Stock Purchase Right.
(u) "Optionee" means the holder of an outstanding Option or
Stock
Purchase Right granted under the Plan.
(v) "Parent" means a "parent corporation," whether now or
hereafter
existing, as defined in Section 424(e) of the Code.
(w) "Plan" means this 2000 Stock Plan.
(x) "Restricted Stock" means shares of Common Stock acquired
pursuant
to a grant of a Stock Purchase Right under Section 11 below.
(y) "Service Provider" means an Employee, Director or
Consultant.
(z) "Share" means a share of the Common Stock, as adjusted in
accordance with Section 12 below.
(aa) "Stock Purchase Right" means a right to purchase Common
Stock
pursuant to Section 11 below.
(bb) "Subsidiary" means a "subsidiary corporation," whether now
or
hereafter existing, as defined in Section 424(f) of the Code.
3.
Stock Subject to the Plan. Subject to the provisions of Section 12
of
the Plan, the maximum aggregate number of Shares that may be
subject to option
and sold under the Plan is 3,000,000 Shares. The Shares may be
authorized but
unissued, or reacquired Common Stock.
If
an Option or Stock Purchase Right expires or becomes
unexercisable
without having been exercised in full, or is surrendered pursuant
to an Option
Exchange Program, the unpurchased Shares which were subject thereto
shall become
available for future grant or sale under the Plan (unless the Plan
has
terminated). However, Shares that have actually been issued under
the Plan, upon
exercise of either an Option or Stock Purchase Right, shall not be
returned to
the Plan and shall not become available for future distribution
under the Plan,
except that if Shares of Restricted Stock are repurchased by the
Company at
their original purchase price, such Shares shall become available
for future
grant under the Plan.
4.
Administration of the Plan.
(a) Administrator. The Plan shall be administered by the Board or
a
Committee appointed by the Board, which Committee shall be
constituted to comply
with Applicable Laws.
(b) Powers of the Administrator. Subject to the provisions of the
Plan
and, in the case of a Committee, the specific duties delegated by
the Board to
such Committee, and subject to the approval of any relevant
authorities, the
Administrator shall have the authority in its discretion:
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(i) to determine Fair Market Value;
(ii) to select the Service Providers to whom Options and Stock
Purchase Rights may from time to time be granted hereunder;
(iii) to determine the number of Shares to be covered by each
such award granted hereunder;
(iv) to approve forms of agreement for use under the Plan;
(v) to determine the terms and conditions, of any Option or
Stock
Purchase Right granted hereunder. Such terms and conditions
include, but are not
limited to, the exercise price, the time or times when Options or
Stock Purchase
Rights may be exercised (which may be based on performance
criteria), any
vesting acceleration or waiver of forfeiture restrictions, and any
restriction
or limitation regarding any Option or Stock Purchase Right or the
Common Stock
relating thereto, based in each case on such factors as the
Administrator, in
its sole discretion, shall determine;
(vi) to determine whether and under what circumstances an
Option
may be settled in cash under subsection 9(e) instead of Common
Stock;
(vii) to reduce the exercise price of any Option to the then
current Fair Market Value if the Fair Market Value of the Common
Stock covered
by such Option has declined since the date the Option was
granted;
(viii) to initiate an Option Exchange Program;
(ix) to prescribe, amend and rescind rules and regulations
relating to the Plan, including rules and regulations relating to
sub-plans
established for the purpose of qualifying for preferred tax
treatment under
foreign tax laws;
(x) to allow Optionees to satisfy withholding tax obligations
by
electing to have the Company withhold from the Shares to be issued
upon exercise
of an Option or Stock Purchase Right that number of Shares having a
Fair Market
Value equal to the amount required to be withheld. The Fair Market
Value of the
Shares to be withheld shall be determined on the date that the
amount of tax to
be withheld is to be determined. All elections by Optionees to have
Shares
withheld for this purpose shall be made in such form and under such
conditions
as the Administrator may deem necessary or advisable; and
(xi) to construe and interpret the terms of the Plan and awards
granted pursuant to the Plan.
(c) Effect of Administrator's Decision. All decisions,
determinations
and interpretations of the Administrator shall be final and binding
on all
Optionees.
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5.
Eligibility.
(a) Nonstatutory Stock Options and Stock Purchase Rights may be
granted to Service Providers. Incentive Stock Options may be
granted only to
Employees.
(b) Each Option shall be designated in the Option Agreement as
either
an Incentive Stock Option or a Nonstatutory Stock Option.
However,
notwithstanding such designation, to the extent that the aggregate
Fair Market
Value of the Shares with respect to which Incentive Stock Options
are
exercisable for the first time by the Optionee during any calendar
year (under
all plans of the Company and any Parent or Subsidiary) exceeds
$100,000, such
Options shall be treated as Nonstatutory Stock Options. For
purposes of this
Section 5(b), Incentive Stock Options shall be taken into account
in the order
in which they were granted. The Fair Market Value of the Shares
shall be
determined as of the time the Option with respect to such Shares is
granted.
(c) Neither the Plan nor any Option or Stock Purchase Right
shall
confer upon any Optionee any right with respect to continuing the
Optionee's
relationship as a Service Provider with the Company, nor shall it
interfere in
any way with his or her right or the Company's right to terminate
such
relationship at any time, with or without cause.
6.
Term of Plan. The Plan shall become effective upon its adoption by
the
Board. It shall continue in effect for a term of ten (10) years
unless sooner
terminated under Section 14 of the Plan.
7.
Term of Option. The term of each Option shall be stated in the
Option
Agreement; provided, however, that the term shall be no more than
ten (10) years
from the date of grant thereof. In the case of an Incentive Stock
Option granted
to an Optionee who, at the time the Option is granted, owns stock
representing
more than ten percent (10%) of the voting power of all classes of
stock of the
Company or any Parent or Subsidiary, the term of the Option shall
be five (5)
years from the date of grant or such shorter term as may be
provided in the
Option Agreement.
8.
Option Exercise Price and Consideration.
(a) The per share exercise price for the Shares to be issued
upon
exercise of an Option shall be such price as is determined by the
Administrator,
but shall be subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the time of grant of such
Option, owns stock representing more than ten percent (10%) of the
voting power
of all classes of stock of the Company or any Parent or Subsidiary,
the exercise
price shall be no less than 110% of the Fair Market Value per Share
on the date
of grant.
(B)
granted to any other Employee, the per Share exercise
price shall be no less than 100% of the Fair Market Value per Share
on the date
of grant.
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(ii)
In the case of a Nonstatutory Stock Option
(A) granted to a Service Provider who, at the time of grant
of such Option, owns stock representing more than ten percent (10%)
of the
voting power of all classes of stock of the Company or any Parent
or Subsidiary,
the exercise price shall be no less than 110% of the Fair Market
Value per Share
on the date of grant.
(B) granted to any other Service Provider, the per Share
exercise price shall be no less than 85% of the Fair Market Value
per Share on
the date of grant.
(iii) Notwithstanding the foregoing, Options may be granted
with
a per Share exercise price other than as required above pursuant to
a merger or
other corporate transaction.
(b) The consideration
to be paid for the Shares to be issued upon
exercise of an Option, including the method of payment, shall be
determined by
the Administrator (and, in the case of an Incentive Stock Option,
shall be
determined at the time of grant). Such consideration may consist of
(1) cash,
(2) check, (3) promissory note, (4) other Shares which (x) in the
case of Shares
acquired upon exercise of an Option, have been owned by the
Optionee for more
than six months on the date of surrender, and (y) have a Fair
Market Value on
the date of surrender equal to the aggregate exercise price of the
Shares as to
which such Option shall be exercised, (5) consideration received by
the Company
under a cashless exercise program implemented by the Company in
connection with
the Plan, or (6) any combination of the foregoing methods of
payment. In making
its determination as to the type of consideration to accept, the
Administrator
shall consider if acceptance of such consideration may be
reasonably expected to
benefit the Company.
9.
Exercise of Option.
(a) Procedure for Exercise; Rights as a Shareholder. Any Option
granted hereunder shall be exercisable according to the terms
hereof at such
times and under such conditions as determined by the Administrator
and set forth
in the Option Agreement. Except in the case of Options granted to
Officers,
Directors and Consultants, Options shall become exercisable at a
rate of no less
than 20% per year over five (5) years from the date the Options are
granted.
Unless the Administrator provides otherwise, vesting of Options
granted
hereunder to Officers and Directors shall be tolled during any
unpaid leave of
absence. An Option may not be exercised for a fraction of a
Share.
An Option shall be deemed exercised when the Company receives:
(i) written or electronic notice of exercise (in accordance with
the Option
Agreement) from the person entitled to exercise the Option, and
(ii) full
payment for the Shares with respect to which the Option is
exercised. Full
payment may consist of any consideration and method of payment
authorized by the
Administrator and permitted by the Option Agreement and the Plan.
Shares issued
upon exercise of an Option shall be issued in the name of the
Optionee or, if
requested by the Optionee, in the name of the Optionee and his or
her spouse.
Until the Shares are issued (as evidenced by the appropriate entry
on the books
of the Company or of a duly authorized transfer agent of the
Company), no right
to vote or receive dividends or any other rights as a shareholder
shall exist
with respect to the Shares,
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notwithstanding the exercise of the Option. The Company shall issue
(or cause to
be issued) such Shares promptly after the Option is exercised. No
adjustment
will be made for a dividend or other right for which the record
date is prior to
the date the Shares are issued, except as provided in Section 12 of
the Plan.
Exercise of an Option in any manner shall result in a decrease
in
the number of Shares thereafter available, both for purposes of the
Plan and for
sale under the Option, by the number of Shares as to which the
Option is
exercised.
(b) Termination of Relationship as a Service Provider. If an
Optionee
ceases to be a Service Provider, such Optionee may exercise his or
her Option
within such period of time as is specified in the Option Agreement
(of at least
thirty (30) days) to the extent that the Option is vested on the
date of
termination (but in no event later than the expiration of the term
of the Option
as set forth in the Option Agreement). In the absence of a
specified time in the
Option Agreement, the Option shall remain exercisable for three (3)
months
following the Optionee's termination. If, on the date of
termination, the
Optionee is not vested as to his or her entire Option, the Shares
covered by the
unvested portion of the Option shall revert to the Plan. If, after
termination,
the Optionee does not exercise his or her Option within the time
specified by
the Administrator, the Option shall terminate, and the Shares
covered by such
Option shall revert to the Plan.
(c) Disability of Optionee. If an Optionee ceases to be a
Service
Provider as a result of the Optionee's Disability, the Optionee may
exercise his
or her Option within such period of time as is specified in the
Option Agreement
(of at least six (6) months) to the extent the Option is vested on
the date of
termination (but in no event later than the expiration of the term
of such
Option as set forth in the Option Agreement). In the absence of a
specified time
in the Option Agreement, the Option shall remain exercisable for
twelve (12)
months following the Optionee's termination. If, on the date of
termination, the
Optionee is not vested as to his or her entire Option, the Shares
covered by the
unvested portion of the Option shall revert to the Plan. If, after
termination,
the Optionee does not exercise his or her Option within the time
specified
herein, the Option shall terminate, and the Shares covered by such
Option shall
revert to the Plan.
(d) Death of Optionee. If an Optionee dies while a Service
Provider,
the Option may be exercised within such period of time as is
specified in the
Option Agreement (of at least six (6) months) to the extent that
the Option is
vested on the date of death (but in no event later than the
expiration of the
term of such Option as set forth in the Option Agreement) by the
Optionee's
estate or by a person who acquires the right to exercise the Option
by bequest
or inheritance. In the absence of a specified time in the Option
Agreement, the
Option shall remain exercisable for twelve (12) months following
the Optionee's
termination. If, at the time of death, the Optionee is not vested
as to the
entire Option, the Shares covered by the unvested portion of the
Option shall
immediately revert to the Plan. If the Option is not so exercised
within the
time specified herein, the Option shall terminate, and the Shares
covered by
such Option shall revert to the Plan.
(e) Buyout Provisions. The Administrator may at any time offer to
buy
out for a payment in cash or Shares, an Option previously granted,
based on such
terms and conditions as the Administrator shall establish and
communicate to the
Optionee at the time that such offer is made.
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10.
Non-Transferability of Options and Stock Purchase Rights. The
Options
and Stock Purchase Rights may not be sold, pledged, assigned,
hypothecated,
transferred, or disposed of in any manner other than by will or by
the laws of
descent or distribution and may be exercised, during the lifetime
of the
Optionee, only by the Optionee.
11.
Stock Purchase Rights.
(a) Rights to Purchase. Stock Purchase Rights may be issued
either
alone, in addition to, or in tandem with other awards granted under
the Plan
and/or cash awards made outside of the Plan. After the
Administrator determines
that it will offer Stock Purchase Rights under the Plan, it shall
advise the
offeree in writing or electronically of the terms, conditions and
restrictions
related to the offer, including the number of Shares that such
person shall be
entitled to purchase, the price to be paid, and the time within
which such
person must accept such offer. The terms of the offer shall comply
in all
respects with A.L.. The offer shall be accepted by execution of a
Restricted
Stock purchase agreement in the form determined by the
Administrator.
(b) Repurchase Option. Unless the Administrator determines
otherwise,
the Restricted Stock purchase agreement shall grant the Company a
repurchase
option exercisable upon the voluntary or involuntary termination of
the
purchaser's service with the Company for any reason (including
death or
disability). The purchase price for Shares repurchased pursuant to
the
Restricted Stock purchase agreement shall be the original price
paid by the
purchaser and may be paid by cancellation of any indebtedness of
the purchaser
to the Company. The repurchase option shall lapse at such rate as
the
Administrator may determine. Except with respect to Shares
purchased by
Officers, Directors and Consultants, the repurchase option shall in
no case
lapse at a rate of less than 20% per year over five (5) years from
the date of
purchase.
(c) Other Provisions. The Restricted Stock purchase agreement
shall
contain such other terms, provisions and conditions not
inconsistent with the
Plan as may be determined by the Administrator in its sole
discretion.
(d) Rights as a Shareholder. Once the Stock Purchase Right is
exercised, the purchaser shall have rights equivalent to those of a
shareholder
and shall be a shareholder when his or her purchase is entered upon
the records
of the duly authorized transfer agent of the Company. No adjustment
shall be
made for a dividend or other right for which the record date is
prior to the
date the Stock Purchase Right is exercised, except as provided in
Section 12 of
the Plan.
12.
Adjustments Upon Changes in Capitalization, Merger or Asset
Sale.
(a) Changes in Capitalization. Subject to any required action by
the
shareholders of the Company, the number of shares of Common Stock
covered by
each outstanding Option or Stock Purchase Right, and the number of
shares of
Common Stock which have been authorized for issuance under the Plan
but as to
which no Options or Stock Purchase Rights have yet been granted or
which have
been returned to the Plan upon cancellation or expiratio
