Exhibit 10.4
ECHO THERAPEUTICS, INC.
2008 EQUITY INCENTIVE PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
This NONQUALIFIED STOCK OPTION
AGREEMENT (the “Option Agreement”), dated as of the
day of
, 2008 (the “Grant Date”), is between Echo
Therapeutics, Inc., a Minnesota corporation (the
“Company”), and
(the “Optionee”), [a] [an] [employee] [consultant]
[non-employee director] of the Company or of a “Related
Corporation,” as defined in the Echo Therapeutics, Inc. 2008
Equity Incentive Plan (the “Plan”).
WHEREAS,
the Company desires to give the Optionee the opportunity to
purchase shares of common stock of the Company (“Common
Stock”) as hereinafter provided;
NOW,
THEREFORE, in consideration of the mutual covenants hereinafter set
forth and for other good and valuable consideration, the parties
hereto, intending to be legally bound hereby, agree as
follows:
1.
Grant of Option . The Company hereby grants to the Optionee
the right and option (the “Option”) to purchase all or
any part of an aggregate of
shares of Common Stock. The Option is in all respects limited and
conditioned as hereinafter provided. It is intended that the Option
granted hereunder be a nonqualified stock option
(“NQSO”) and not an incentive stock option
(“ISO”) as such term is defined in section 422 of the
Internal Revenue Code of 1986, as amended (the
“Code”).
2.
Exercise Price . The exercise price of the shares of Common
Stock covered by this Option shall be $
per share. It is the determination of the Board of Directors of the
Company (the “Board”) that on the Grant Date the
exercise price was not less than the greater of (i) 100% of
the “Fair Market Value,” (as defined in the Plan) or
(ii) the par value of the Common Stock.
3.
Term . Except as otherwise provided, this Option shall
expire on
, 20
(the “Expiration Date”), which date is not more than
10 years from the Grant Date. This Option shall not be
exercisable on or after the Expiration Date.
4.
Exercise of Option . The Optionee shall have the right to
purchase from the Company, on and after the following dates, the
following number of Shares:
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Exercisable |
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Number of Option Shares |
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Shares |
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an additional
Shares |
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an additional
Shares |
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an additional
Shares |
Once options become exercisable, they
will remain exercisable until they are exercised or until they
terminate.
5.
Method of Exercising Option . Subject to the terms and
conditions of this Option Agreement, the Option may be exercised by
written notice to the Company at its principal office, which is
presently located at 10 Forge Parkway, Franklin, Massachusetts
02038, Attn: Chief Executive Officer. Such notice (a suggested form
of which is attached hereto) shall state the election to exercise
the Option and the number of whole shares with respect to which it
is being exercised; shall be signed by the person or persons so
exercising the Option; and shall be accompanied by payment of the
full exercise price of such shares. Only full shares will be
issued.
The exercise price shall be paid to
the Company –
(a) in
cash, or by certified check, bank draft, or postal or express money
order;
(b) through
the delivery of shares of Common Stock which shall be valued at the
Fair Market Value of the Common Stock on the date of
exercise;
(c) by
having the Company withhold shares of Common Stock at the Fair
Market Value on the date of exercise;
(d) by
delivering a properly executed notice of exercise of the Option to
the Company and a broker, with irrevocable instructions to the
broker promptly to deliver to the Company the amount of sale or
loan proceeds necessary to pay the exercise price of the Option;
or
(e) in
any combination of (a), (b), (c) or (d) above.
In
the event the exercise price is paid, in whole or in part, with
shares of Common Stock, the portion of the exercise price so paid
shall be equal to the Exercise Fair Market Value of the Common
Stock surrendered.
Upon
receipt of notice of exercise and payment, the Company shall
deliver a certificate or certificates representing the shares with
respect to which the Option is so exercised. Such certificate(s)
shall be registered in the name of the person or persons so
exercising th
